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Full text of "Georgia Code, Volume 39"

Digitized by the Internet Archive 
in 2013 



http://archive.org/details/govlawgacode392000 



OFFICIAL CODE OF GEORGIA 
ANNOTATED 



With Provision for Subsequent Pocket Parts 



Prepared by 

The Code Revision Commission 

The Office of Legislative Counsel 

and 

The Editorial Staff of LEXIS Publishing 




Published Under Authority of the State of Georgia 



Volume 39 

2000 Edition 

Title 51. Torts 



Including Acts of the 2000 Session of the General Assembly 

of Georgia and Annotations taken from the Georgia 

Reports and the Georgia Appeals Reports 



LEXIS® Publishing 

Charlottesville, Virginia 



Copyright © 2000 

BY 

The State of Georgia 



All rights reserved. 



ISBN 0-327-14509-9 



4196611 




<$, yoaMjj, %)oc, tPect^a/m c£ tfittde c£tke $ta4e o£ 

%Chgm,cfak&ldy, Ce^f^^d ^ statutory portion of the Official 
Code of Georgia Annotated contained in this volume is a true and correct copy of such material 
as enacted by the General Assembly of Georgia; all as same appear of file and record in this 
office. 





_Jn TESTIMONY WHEREOF, I have hereunto set my hand and affixed 
the seal of my office, at the Capitol, in the City of Atlanta, this 
30th day of October , in the year of our Lord 

Two Thousand 

and of the Independence of the United States of America the 

Twenty-fifth. 
Two Hundred and 



rnBi^*p 



Secretary of State 



Preface 

This volume cumulates and replaces the 1982 edition of Volume 39 of the 
Official Code of Georgia Annotated, as supplemented by the 2000 Cumu- 
lative Supplement. The 1982 Volume 39 and its 2000 Supplement may be 
recycled or, if so desired retained for historical purposes. 

This volume contains all laws specifically codified in Tide 51 by the 
General Assembly through the 2000 Session. This volume also contains 
case annotations reflecting decisions posted to LEXIS-NEXIS® through 
July 14, 2000. These annotations will appear in the following traditional 
reporter sources: Georgia Reports; Georgia Appeals Reports; South- 
eastern Reporter; Supreme Court Reporter; Federal Reporter; Federal 
Supplement; Federal Rules Decisions; Lawyers' Edition; United States 
Reports; and Bankruptcy Reporter. As official and traditional citations 
become available, substitutions for the LEXIS-NEXIS citations will be 
made. 

Additionally, LEXIS Publishing has prepared annotations and references 
to Attorney General Opinions, law reviews, and other research sources that 
we hope will be beneficial as you utilize this product. A complete listing of 
those sources is as follows: Opinions of the Attorney General; Opinions of 
the Judicial Qualifications Commission; Advisory Opinions of the State 
Disciplinary Board of the State Bar; Formal Advisory Opinions of the State 
Disciplinary Board of the State Bar, issued by the Supreme Court of 
Georgia; Emory Law Journal; Georgia Law Review; Georgia State University 
Law Review; Mercer Law Review; Georgia State Bar Journal; American Law 
Reports; Corpus Juris Secundum; American Jurisprudence; and Uniform 
Laws Annotated. Also included where appropriate are cross-references to 
the Official Code of Georgia Annotated, the Rules of Court, and the Rules 
and Regulations of the State of Georgia. 

This volume retains amendment notes and effective date notes for 
Acts passed during the 1998, 1999, and 2000 Sessions of the General 
Assembly. In order to determine the changes that were made or the 
effective date applied to a Code section by an Act passed during the 1982 
through 1997 Sessions of the General Assembly, the user should consult the 
Georgia Laws or replaced volumes of the Official Code of Georgia 
Annotated. 

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PREFACE 

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VI 



User's Guide 

In order to assist both the legal profession and the layperson in obtaining 
the maximum benefit from the Official Code of Georgia Annotated, a 
User's Guide containing comments and information on the many features 
found within the Code has been included in Volume 1 of the Official Code 
of Georgia Annotated. 



vn 



Table of Tides 



Title 1 . General Provisions. 

2. Agriculture. 

3. Alcoholic Beverages. 

4. Animals. 

5. Appeal and Error. 

6. Aviation. 

7. Banking and Finance. 

8. Buildings and Housing. 

9. Civil Practice. 

10. Commerce and Trade. 

1 1 . Commercial Code. 

12. Conservation and Natural Resources. 

13. Contracts. 

14. Corporations, Partnerships, and Associations. 

15. Courts. 

16. Crimes and Offenses. 

17. Criminal Procedure. 

18. Debtor and Creditor. 

19. Domestic Relations. 

20. Education. 

21. Elections. 

22. Eminent Domain. 

23. Equity. 

24. Evidence. 

25. Fire Protection and Safety. 

26. Food, Drugs, and Cosmetics. 

27. Game and Fish. 

28. General Assembly. 

29. Guardian and Ward. 

ix 



TABLE OF TITLES 

30. Handicapped Persons. 

31. Health. 

32. Highways, Bridges, and Ferries. 

33. Insurance. 

34. Labor and Industrial Relations. 

35 . Law Enforcement Officers and Agencies. 

36. Local Government. 

37. Mental Health. 

38. Military, Emergency Management, and Veterans Affairs. 

39. Minors. 

40. Motor Vehicles and Traffic. 

41. Nuisances. 

42. Penal Institutions. 

43. Professions and Businesses. 

44. Property. 

45. Public Officers and Employees. 

46. Public Utilities and Public Transportation. 

47. Retirement and Pensions. 

48. Revenue and Taxation. 

49. Social Services. 

50. State Government. 

51. Torts. 

52. Waters of the State, Ports, and Watercraft. 

53 . Wills, Trusts, and Administration of Estates. 

In Addition, This Publication Includes 
Constitution of the United States 
Constitution of the State of Georgia 
Tables of Comparative Sections 
Table of Acts 
Index to Local and Special Laws 



TABLE OF TITLES 

Index to General Laws of Local Application 
Short Title Index 
General Index 



XI 



Table of Contents 



VOLUME 39 



Title 51 
Torts 



CHAPTER PAGE 

1. General Provisions, 51-1-1 through 51-1-49 3 

2. Imputable Negligence, 51-2-1 through 51-2-7 171 

3. Liability of Owners and Occupiers of Land, 51-3-1 through 

51-3-26 253 

4. Wrongful Death, 51-4-1 through 51-4-5 334 

5. Libel and Slander, 51-5-1 through 51-5-12 363 

6. Fraud and Deceit, 51-6-1 through 51-6-4 434 

7. False Arrest, False Imprisonment, Malicious Prosecution, and 

Abusive Litigation ,51-7-1 through 5 1-7-85 458 

8. Forcible Entry and Detainer, 51-8-1 through 51-8-11 [Repealed] 515 

9. Injuries to Real Estate, 51-9-1 through 51-9-1 1 516 

10. Injuries to Personalty, 51-10-1 through 51-10-6 541 

1 1 . Defenses to Tort Actions, 51-1 1-1 through 51-11-21 552 

12. Damages, 51-12-1 through 51-12-77 605 

Index to Tide 51 737 



Xlll 



TITLE 51 
TORTS 

Chap. 1. General Provisions, 51-1-1 through 51-1-49. 

2. Imputable Negligence, 51-2-1 through 51-2-7. 

3. Liability of Owners and Occupiers of Land, 51-3-1 through 

51-3-26. 

4. Wrongful Death, 51-4-1 through 51-4-5. 

5. Libel and Slander, 51-5-1 through 51-5-12. 

6. Fraud and Deceit, 51-6-1 through 51-6-4. 

7. False Arrest, False Imprisonment, Malicious Prosecution, and 

Abusive Litigation, 51-7-1 through 51-7-85. 

8. Forcible Entry and Detainer, 51-8-1 through 51-8-11 [Repealed]. 

9. Injuries to Real Estate, 51-9-1 through 51-9-11. 

10. Injuries to Personalty, 51-10-1 through 51-10-6. 

11. Defenses to Tort Actions, 51-11-1 through 51-11-21. 

12. Damages, 51-12-1 through 51-12-77. 



Cross references. — Abatement of tort 
actions upon death of either party, § 9-2-41. 
Time limitations on actions for injuries to 
the person, § 9-3-33. Forms of complaint for 
actions based on allegations of negligence, 
§§ 9-11-109, 9-11-110. Redress by client 
against attorney for unskillful advice, 
§ 15-19-17. Immunity of municipal corpora- 
tions from liability for torts of policemen, 
§ 36-33-3. State Tort Claims, § 50-21-20 et 
seq. 

Law reviews. — For article surveying cases 
in tort law from June 1976 through May 
1977, see 29 Mercer L. Rev. 253 (1977). For 
article surveying Georgia cases in tort law 
from June 1977 through May 1978, see 30 
Mercer L. Rev. 215 (1978). For article sur- 
veying cases in tort law from June 1978 
through May 1979, see 31 Mercer L. Rev. 229 
(1979). For article surveying Georgia cases 
in tort law from May 1979 through June 
1980, see 32 Mercer L. Rev. 215 (1980). For 
annual survey on torts, see 36 Mercer L. Rev. 
327 (1984). For article surveying tort law in 



1984-1985, see 37 Mercer L. Rev. 373 (1985). 
For article, "Mass Torts and Litigation Disas- 
ters," see 20 Ga. L. Rev. 429 (1986). For 
article, "A Comment on Mass Torts and 
Litigation Disasters," see 20 Ga. L. Rev. 455 
(1986). For annual survey of torts law, see 39 
Mercer L. Rev. 327 (1987). For annual sur- 
vey of law of torts, see 40 Mercer L. Rev. 377 
( 1988) . For annual survey on law of torts, see 
42 Mercer L. Rev. 431 (1990). For annual 
survey on law of torts, see 43 Mercer L. Rev. 
395 ( 1991 ) . For annual survey of law of torts, 
see 44 Mercer L. Rev. 375 (1992). For annual 
survey on the law of torts, see 45 Mercer L. 
Rev. 403 (1993). For annual survey on the 
law of torts, see 46 Mercer L. Rev. 465 
(1994). For annual survey article on the law 
of torts, see 49 Mercer L. Rev. 285 (1997). 
For annual survey article on tort law, see 50 
Mercer L. Rev. 335 (1998). For annual sur- 
vey article on the law of torts, see 51 Mercer 
L. Rev. 461 (1999). 

For note, "Tort Liability in Georgia for the 



TORTS 



Criminal Acts of Another, 
361 (1984). 



see 18 Ga. L. Rev. 



JUDICIAL DECISIONS 



Service by publication in actions under 
this title. — The statutes pertaining to torts 
contain no provision for service by publica- 
tion in any action for personal judgment for 
a tort against any person, resident or non- 
resident. Barnes v. Continental Ins. Co., 231 
Ga. 246, 201 S.E.2d 150 (1973); Smith v. 
Commercial Union Assurance Co., 246 Ga. 
50, 268 S.E.2d 632 (1980). 

There is no provision in the Nonresident 
Motorists' Act (Ch. 12, T. 40), the "long 



arm" statute (Art. 4, Ch. 10, T. 9), or in the 
statutes relative to torts for service on a 
nonresident defendant by publication, and 
by its own terms the provision in § 9-ll-4(e) 
(1) for service by publication is limited in 
§ 9-ll-4(i) by the qualification that the pro- 
visions shall apply only in actions or proceed- 
ings in which service by publication now or 
hereafter may be authorized by law. National 
Sur. Corp. v. Hernandez, 120 Ga. App. 307, 
170S.E.2d318 (1969). 



RESEARCH REFERENCES 



ALR. — Discretion of court to refuse to 
entertain action for nonstatutory tort occur- 
ring in another state or country, 48 ALR2d 
800. 

What is place of tort causing personal 
injury or resultant damage or death, for 
purpose of principle of conflict of laws that 
law of place of tort governs, 77 ALR2d 1266. 

Civil liability for insulting or abusive lan- 
guage — modern status, 20 ALR4th 773. 

Liability to real-property purchaser for 
negligent appraisal of property's value, 21 
ALR4th 867. 

Personal liability of public school teacher 
in negligence action for personal injury or 
death of student, 34 ALR4th 228. 

Insurer's tort liability for wrongful or neg- 
ligent issuance of life policy, 37 ALR4th 972. 

Negligence in preparing abstract of title as 
ground of liability to one other than person 
ordering abstract, 50 ALR4th 314. 

Liability of better business bureau or sim- 
ilar organization in tort, 50 ALR4th 745. 

Tennis club's liability for tennis player's 
injuries, 52 ALR4th 1253. 

Civil liability for tobacco sales to minors, 
55 ALR4th 1238. 

Liability to one struck by golf club, 63 
ALR4th 221. 

Invasion of privacy by a clergyman, 
church, or religious group, 67 ALR4th 1086. 



Liability of corporate director, officer, or 
employee for tortious interference with cor- 
poration's contract with another, 72 ALR4th 
492. 

Strict liability, in absence of statute, for 
injury or damage occurring on the ground 
caused by ascent, descent, or flight of air- 
craft, 73 ALR4th 416. 

Tort liability for nonmedical radiological 
harm, 73 ALR4th 582. 

Rescue doctrine: liability of one who neg- 
ligently causes motor vehicle accident for 
injuries to person subsequently attempting 
to rescue persons or property, 73 ALR4th 
737. 

Cause of action for clergy malpractice, 75 
ALR4th 750. 

Liability in tort for interference with 
attorney-client relationship, 90 ALR4th 621. 

Liability of motorist for injury to child on 
skateboard, 24 ALR5th 780. 

Free exercise of religion clause of first 
amendment as defense to tort liability, 93 
ALR Fed. 754. 

Pre-emption, by § 301(a) of Labor- 
Management Relations Act of 1947 (29 
USCS § 185(a)), of employee's state-law ac- 
tion for infliction of emotional distress, 101 
ALR Fed. 395. 



GENERAL PROVISIONS 

CHAPTER 1 
GENERAL PROVISIONS 



Sec. Sec. 

51-1-1. Tort defined. 51-1-20.1. 

51-1-2. Ordinary diligence and ordinary 

negligence defined. 

51-1-3. Extraordinary diligence and 

slight negligence defined. 

51-1-4. Slight diligence and gross negli- 51-1-21. 

gence defined. 

51-1-5. Meaning of "due care" in refer- 51-1-22. 

ence to child of tender years. 

51-1-6. Recovery of damages upon 

breach of legal duty. 51-1-23. 

51-1-7. When infraction of public duty 51-1-24. 

gives cause of action to individ- 
ual. 51-1-25. 

51-1-8. Right of action arising from 

breach of private duty. 

51-1-9. Recovery for torts to self, wife, 51-1-26. 
child, ward, or servant. 

51-1-10. Who may bring an action for 

torts to wife; action by wife living 51-1-27. 

apart from husband for torts to 

self or children. 51-1-28. 

51-1-11. When privity required to support 
action; product liability action 
and time limitation therefor. 

51-1-11.1. Liability of product seller as a 51-1-29. 
manufacturer. 

51-1-12. Liability for ratifying tort. 51-1-29.1. 

51-1-13. Cause of action for physical in- 
jury; intention considered in as- 
sessing damages. 51-1-29.2. 

51-1-14. Violent injury or attempt to com- 
mit injury. 

51-1-15. Right of action for abduction or 

harboring of wife. 51-1-30. 

51-1-16. Right of action for seduction of 
daughter; exemplary damages. 

51-1-17. Rights of action for adultery, 

alienation of affections, and 51-1-30.1. 
criminal conversation abolished. 

51-1-18. Furnishing alcoholic beverages 

to minor children; gambling 51-1-30.2. 
with minor children. 

51-1-19. Negligence by person given trust 
or confidence for consideration. 

51-1-20. Liability of persons serving char- 51-1-30.3. 
itable organizations and public 
entities while acting in good 
faith. 



Liability of volunteers, employ- 
ees, or officers of nonprofit asso- 
ciation conducting or sponsor- 
ing sports or safety program; 
liability of association. 
Liability of owner of watercraft 
for torts generally. 
Owner's liability for negligent 
operation of vessel; express or 
implied consent prerequisite. 
Sale of unwholesome provisions. 
Sale of adulterated drugs or alco- 
holic beverages. 

Furnishing of wrong article or 
medicine by vender of drugs and 
medicines. 

Survivability of actions under 
Code Sections 51-1-23 through 
51-1-25. 

Recovery for medical malprac- 
tice authorized. 

Transfusions, transplants, and 
transfers of human blood, tissue, 
organs; negligence prerequisite 
to recovery for damages. 
Liability of persons rendering 
emergency care. 

Liability of voluntary health care 
provider and sponsoring organi- 
zation. 

Liability of persons acting to pre- 
vent, minimize, and repair injury 
and damage resulting from cata- 
strophic acts of nature. 
Liability of officers and agents 
for acts performed while fighting 
fires or performing duties at the 
scene of emergencies. 
Exemption from tort liability of 
drivers and operators of fire ap- 
paratus in certain municipalities. 
Immunity of teachers and school 
personnel from liability for com- 
municating information con- 
cerning drug abuse. 
Immunity from liability for per- 
sons providing certain services 
upon public or private school 
property and for public or pri- 



3 



51-1-1 



TORTS 



51-1-1 



Sec. 

vate schools requesting such ser- 
vices. 

51-1-31. Liability from donation of 
canned or perishable food to 
charitable or nonprofit organiza- 
tions for use or distribution. 

51-1-32. Separate causes of action for per- 
sonal injury and property dam- 
age caused by motor vehicle. 

51-1-33. Settlement of single action un- 
der Code Section 51-1-32 — Evi- 
dence in separate action. 

51-1-34. Settlement of single action un- 
der Code Section 51-1-32 — Ef- 
fect in separate action. 

51-1-35. When negotiating or obtaining 
statement from injured adverse 
party prohibited; effect of pro- 
hibited settlement in court ac- 
tion. 

51-1-36. Duty of care of operator of mo- 
tor vehicle to passengers. 

51-1-37. Negligent or improper adminis- 
tration of polygraph examina- 
tion; measure of damages. 

51-1-38. Tort immunity for medical stu- 
dents; exceptions. 

51-1-39. Liability for injuries of person 
committing crime on political 
subdivision property. 



Sec. 

51-1-40. Liability for acts of intoxicated 
persons. 

51-1-41. Liability of sports officials at am- 
ateur athletic contests. 

51-1-42. Limitation of liability for trans- 
portation of senior citizens by 
volunteer. 

51-1-43. "Roller Skating Safety Act of 
1993." 

51-1-44. Limitation of liability for dental 
students. 

51-1-45. Immunity of persons serving 
without compensation as athletic 
team physicians. 

51-1-46. "Drug Dealer Liability Act"; pur- 
pose; definitions; actions against 
persons participating in illegal 
marketing of controlled sub- 
stances. 

51-1-47. Immunity for disconnection of 
motor vehicle air bags. 

51-1-48. Diligence required in reviewing 
claims; nonwaivable liability is 
not created; definitions. 

51-1-49. Requirements for maintaining 
cause of action against managed 
care entity; notice; independent 
review. 



51-1-1. Tort defined. 

A tort is the unlawful violation of a private legal right other than a mere 
breach of contract, express or implied. A tort may also be the violation of a 
public duty if, as a result of the violation, some special damage accrues to 
the individual. (Orig. Code 1863, § 2894; Code 1868, § 2900; Code 1873, 
§ 2951; Code 1882, § 2951; Civil Code 1895, § 3807; Civil Code 1910, 
§ 4403; Code 1933, § 105-101.) 



History of section. — The language of this 
section is derived in part from the decisions 
in Western Union Tel. Co. v. Taylor, 84 Ga. 
408, 11 S.E. 397 (1890); Louisville 8c N.R.R. 
v. Spinks, 104 Ga. 692, 30 S.E. 968 (1898); 
and Wolff v. Southern Ry., 130 Ga. 251, 60 
S.E. 569 (1908). 

Law reviews. — For article advocating the 
exhaustion of every possible recovery before 
closing a tort claim, see 18 Ga. BJ. 301 
(1956). For article, "Products Liability Law 
in Georgia: Is Change Coming?" see 10 Ga. 
St. BJ. 353 (1974). For article analyzing the 



trend in this country toward no-fault liability, 
see 25 Emory L. J. 163 (1976). For article 
discussing plaintiff conduct and the emerg- 
ing doctrine of comparative causation of 
torts, see 29 Mercer L. Rev. 403 (1978). For 
article discussing the defenses to strict liabil- 
ity in tort, see 29 Mercer L. Rev. 447 (1978). 
For article examining the significance of 
distinguishing between tort and contract in 
Georgia, see 30 Mercer L. Rev. 303 (1978). 
For article, "Products Liability Law in Geor- 
gia Including Recent Developments," see 43 
Mercer L. Rev. 27 (1991). For article, "Se- 



51-1-1 



GENERAL PROVISIONS 



51-1-1 



lected Federal Tort Reform and Restatement 
Proposals Through the Lenses of Corrective 
Justice and Efficiency," see 32 Ga. L. Rev. 
1017 (1998). 
For note discussing increased risk of can- 



cer as an actionable injury, see 18 Ga. L. Rev. 
563 (1984). 

For comment, "Medical Expert Systems 
and Publisher Liability: A Cross-Contextual 
Analysis," see 43 Emory L.J. 731 (1994). 



JUDICIAL DECISIONS 



Analysis 

General Consideration 
Torts Related to Contract 
Pleading and Practice 



General Consideration 

A tort is the unlawful violation of a private 
legal right by reason of which some special 
damage accrues to the individual. Parsons v. 
Foshee, 80 Ga. App. 127, 55 S.E.2d 386 
(1949); First Fed. Sav. Bank v. Fretthold, 195 
Ga. App. 482, 394 S.E.2d 128 (1990). 

A tort is an injury inflicted otherwise than 
by mere breach of contract; or, more accu- 
rately, a tort is one's disturbance of another 
in rights which the law has created either in 
the absence of contract, or in consequence 
of a relation which a contract has established 
between the parties. Postal Telegraph-Cable 
Co. v. Kaler, 65 Ga. App. 641, 16 S.E.2d 77 
(1941). 

A suit will be treated as tort action where 
recovery is based on breach of duty, and not 
on contract. Bates v. Madison County, 32 Ga. 
App. 370, 123 S.E. 158 (1924). 

In order for tort action to lie, there must 
be injury to the plaintiff, i.e., some initiating 
event which is the result of the defendant's 
negligence and brings that wrongful con- 
duct to light. Cotton States Mut. Ins. Co. v. 
Crosby, 244 Ga. 456, 260 S.E.2d 860 (1979). 

Violation of duty required. — It is essen- 
tial to maintain an action in tort that there 
must be a duty from the defendant to the 
plaintiff, and a violation of such duty. Knight 
v. AUantic Coast Line R.R., 4 F. Supp. 713 
(S.D. Ga. 1933), aff'd, 73 F.2d 76 (5th Cir. 
1934). 

There must be both a breach of duty and 
damage because of such breach before there 
can be a recovery upon the official bond of 
the clerk of the superior court. Georgia 
Properties Co. v. Nisbet, 42 Ga. App. 338, 
156 S.E. 298 (1930). 

A third-party does not owe a duty to an 
employer to refrain from injuring the em- 



ployer's emplo ee. Traina Enters., Inc. v. 
Racetrac Petro., Inc., 241 Ga. App. 18, 525 
S.E.2d712 (1999). 

Rightful and proper exercise of lawful 
power or authority cannot afford basis for 
action under this section. Louisville & N.R.R. 
v.Jackson, 139 Ga. 543, 77 S.E. 796 (1913). 

Violation of mere moral obligation insuf- 
ficient. — The law does not yet attempt to 
guard the peace of mind, or the happiness of 
every one by giving recovery of damages for 
mental anguish for a violation produced by a 
mere moral wrong; thus if mental pain and 
anguish results from mere violation of a 
mere moral obligation, there can be no 
recovery in tort. Anderson v. Fussell, 75 Ga. 
App. 866, 44 S.E.2d 694 (1947). 

Aiding and abetting breach of fiduciary 
duty. — Georgia law does not recognize the 
tort of aiding and abetting a breach of 
fiduciary duty, and a Georgia court faced 
with the issue would not be likely to create 
such a cause of action since the imposition 
of aider and abettor liability for such 
breaches essentially extends fiduciary obliga- 
tions beyond the scope of the confidential or 
special relationship upon which these duties 
are based. Munford, Inc. v. Munford, 188 
Bankr. 860 (N.D. Ga. 1994), aff'd, 97 F.3d 
449 (11th Cir. 1996), 97 F.3d 456 (11th Cir. 
1996), aff'd on other grounds, 98 F.3d 604 
(11th Cir. 1996). 

Georgia law does not recognize spoliation 
of evidence as a separate tort. Gardner v. 
Blackston, 185 Ga. App. 754, 365 S.E.2d 545 
(1988). 

Elements of damage arising from tort. — 
It is elementary that damage may consist of 
several items caused by the general wrong or 
tort. For example, pain and suffering, loss of 
earning capacity and medical expenses, re- 
sulting from and caused by the negligence of 



51-1-1 



TORTS 



51-1-1 



General Consideration (Cont'd) 

a defendant in causing an injury to the 
person of another. Gloss v. Jacobs, 86 Ga. 
App. 161, 71 S.E.2d 253 (1952). 

Cited in Strachan Shipping Co. v. 
Hazlip-Hood Cotton Co., 35 Ga. App. 94, 
132 S.E. 454 (1926); Wall v. Wall, 176 Ga. 
757, 168 S.E. 893 (1933); Sikes v. Foster, 74 
Ga. App. 350, 39 S.E.2d 585 (1946); Brigman 
v. Brenner, 206 Ga. 222, 56 S.E.2d 471 
(1949); Dale Elec. Co. v. Thurston, 82 Ga. 
App. 516, 61 S.E.2d 584 (1950); Hardy v. 
Leonard, 82 Ga. App. 764, 62 S.E.2d 437 
(1950); Freeman v. Busch Jewelry Co., 98 F. 
Supp. 963 (N.D. Ga. 1951); Aderhold v. 
Zimmer, 86 Ga. App. 204, 71 S.E.2d 270 
(1952); Rhine v. Sanders, 100 Ga. App. 68, 
110 S.E.2d 128 (1959); Patillo v. Thompson, 
106 Ga. App. 808, 128 S.E.2d 656 (1962); 
Georgia Elec. Co. v. Smith, 108 Ga. App. 851, 
134 S.E.2d 840 (1964); Wittke v. Home's 
Enters., Inc., 118 Ga. App. 211, 162 S.E.2d 
898 (1968); Railey v. State Farm Mut. Auto. 
Ins. Co., 129 Ga. App. 875, 201 S.E.2d 628 
(1973); Parzini v. Center Chem. Co., 134 Ga. 
App. 414, 214 S.E.2d 700 (1975); Davis v. 
Ben O'Callaghan Co., 139 Ga. App. 22, 227 
S.E.2d 837 (1976); Aretz v. United States, 
604 F.2d 417 (5th Cir. 1979); Young v. 
Carrollton Fed. Sav. & Loan Ass'n, 159 Ga. 
App. 836, 285 S.E.2d 264 (1981); Lavine v. 
General Mills, Inc., 519 F. Supp. 332 (N.D. 
Ga. 1981); Habersham Mem. Park v. Moore, 
164 Ga. App. 676, 297 S.E.2d 315 (1982); 
Stone Mt. Game Ranch, Inc. v. Hunt, 746 
F.2d 761 (11th Cir. 1984); Hodges v. 
Tomberlin, 170 Ga. App. 842, 319 S.E.2d 11 
(1984); Peterson v. First Clayton Bank 8c 
Trust Co., 214 Ga. App. 94, 447 S.E.2d 63 
(1994); Workman v. McNeal Agency, Inc., 
217 Ga. App. 686, 458 S.E.2d 707 (1995); 
Rayle Tech, Inc. v. DEKALB Swine Breeders, 
Inc., 133 F.3d 1405 (11th Cir. 1998). 

Torts Related to Contract 

This section states that if a duty arises out 
of a contract, a plaintiff may not convert that 
action into one sounding in tort. Kaiser 
Aluminum 8c Chem. Corp. v. Ingersoll-Rand 
Co., 519 F. Supp. 60 (S.D. Ga. 1981). 

Tort action may arise from misfeasance of 
duty. — In cases alleging misfeasance or the 
negligent performance of the contract, a 
cause of action ex delicto may be had. 



Mauldin v. Sheffer, 113 Ga. App. 874, 150 
S.E.2d 150 (1966). 

There are certain classes of contracts 
which create a relation from which the law 
implies duties, a breach of which will consti- 
tute a tort, and in such cases an injured party 
may sue either for breach of the contract or 
in tort for breach of the implied duty. This 
rule applies in certain contractual relations 
between principal and agent, bailor and 
bailee, attorney and client, physician and 
patient, carrier and passenger or shipper, 
master and servant, and similar 
well-recognized relations; but it is not every 
contractual relation which involves a public 
duty, the breach of which will support an 
action in tort. American Oil Co. v. Roper, 64 
Ga. App. 743, 14 S.E.2d 145 (1941). 

There is no bar to bringing a tort action 
for the violation of a duty flowing from 
relations between the parties which were 
created by contract. City of Douglas v. 
Johnson, 157 Ga. App. 618, 278 S.E.2d 160 
(1981). 

If the result of a contract is to create a 
relationship between the parties, and there 
are certain duties which the law attaches to 
that relationship, the breach of one of those 
duties may give rise to an action in tort 
Kaiser Aluminum 8c Chem. Corp. v. 
Ingersoll-Rand Co., 519 F. Supp. 60 (S.D. Ga. 
1981). 

Duty must be imposed by law. — In order 
to maintain an action ex delicto because of a 
breach of duty growing out of a contractual 
relation, the breach must be shown to have 
been a breach of a duty imposed by law and 
not merely the breach of a duty imposed by 
the contract itself. Mauldin v. Sheffer, 113 
Ga. App. 874, 150 S.E.2d 150 (1966); Sutker 
v. Pennsylvania Ins. Co., 115 Ga. App. 648, 
155S.E.2d694 (1967). 

An action in tort may be based on a duty 
imposed by law in consequence of a contrac- 
tual relation between the parties. In such a 
case the action is in no sense based on the 
contract, especially where none of the ex- 
pressed provisions are recited, and there is 
no allegation that any of its expressed provi- 
sions were violated, but where the allegation 
is that the defendant company failed to 
transmit and deliver the message with the 
impartiality, good faith, and due diligence 
required by law. Postal Telegraph-Cable Co. 
v. Kaler, 65 Ga. App. 641, 16 S.E.2d 77 
(1941). 



51-1-1 



GENERAL PROVISIONS 



51-1-1 



"Duty imposed by law" as used in this 
context means either a duty imposed by a 
valid statutory enactment of the Legislature 
or a duty imposed by a recognized 
common-law principle declared in the re- 
ported decisions of the appellate courts of 
the state or jurisdiction involved. Sutker v. 
Pennsylvania Ins. Co., 115 Ga. App. 648, 155 
S.E.2d694 (1967). 

To maintain an action in tort because of a 
breach of duty growing out of a contractual 
relation, the breach must be shown to have 
been a breach of duty imposed by statute or 
a duty imposed by a recognized common-law 
principle. Deacon v. Deacon, 122 Ga. App. 
513, 177S.E.2d 719 (1970). 

Contract applicable only to raise duty. — 
A tort is dependent on the contract only to 
the extent necessary to raise the duty, and a 
suit will be treated as a tort action where the 
recovery is placed on a breach of duty and 
not on a contract. Warren v. Mitchell Motors, 
Inc., 52 Ga. App. 58, 182 S.E. 205 (1935); 
Simmons v. May, 53 Ga. App. 454, 186 S.E. 
441 (1936). 

Mere nonfeasance of duty insufficient. — 
Nonfeasance or the mere failure to perform 
a contract at all affords no basis for an action 
ex delicto, even though the failure to per- 
form may have been characterized as negli- 
gent. Mauldin v. Sheffer, 113 Ga. App. 874, 
150 S.E.2d 150 (1966); Lane v. Corbitt Cy- 
press Co., 215 Ga. App. 388, 450 S.E.2d 855 
(1994). 

A breach of an executory contract, into 
which a railroad company was under no 
legal duty to enter, is not a tort. Louisville & 
N.R.R. v. Spinks, 104 Ga. 692, 30 S.E. 968 
(1898); Howard v. Central of Ga. Ry., 9 Ga. 
App. 617, 71 S.E. 1017 (1911). 

An action in tort may not be maintained 
where the neglect of duty complained of, as 
distinguished from the negligent perfor- 
mance of duty, is specifically provided for by 
the contract itself. Monroe v. Guess, 41 Ga. 
App. 697, 154 S.E. 301 (1930). 

If there is no liability except that arising 
out of a breach of the express terms of the 
contract, the action must be in contract, and 
an action in tort cannot be maintained. 
American Oil Co. v. Roper, 64 Ga. App. 743, 
14 S.E.2d 145 (1941); Rhine v. Sanders, 100 
Ga. App. 68, 110 S.E.2d 128 (1959); Mauldin 
v. Sheffer, 113 Ga. App. 874, 150 S.E.2d 150 
(1966). 



While it is true that the violation of some 
private obligation by which damage accrues, 
which is not the result of a mere neglect of 
duty expressly or impliedly provided for by 
the contract itself, can be treated as a tort 
and affords a right or cause of action, the 
principle cannot be applied so as to autho- 
rize an interpretation that the former suit 
sounded in tort, for the reason that the 
wrong complained of was simply the failure 
of the defendants to comply with their 
clearly implied duty under the contract to 
surrender the alleged collateral upon a 
proper tender of the alleged indebtedness 
being made. Spence v. Erwin, 200 Ga. 672, 
38S.E.2d394 (1946). 

It is not every breach of contract that gives 
a cause of action in tort; and so, where the 
breach complained of is simply the neglect 
of a duty such as is expressly provided for by 
the contract itself, the action will be con- 
strued and treated as one brought ex 
contractu. This principle is applicable also 
where the breach complained of is simply 
the neglect of a duty provided by the con- 
tract by implication, either of law or of fact. 
A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 
578, 149S.E.2d 255 (1966). 

Where there is no special relationship 
beyond the mere contractual one, a failure 
to perform in accordance with its terms will 
not constitute a tort as to the other contract- 
ing party. Waddey v. Davis, 149 Ga. App. 308, 
254S.E.2d465 (1979). 

Absent special relationship, misfeasance/ 
nonfeasance distinction controls in deciding 
if the harm done to the plaintiff will permit 
a cause of action in negligence as well as in 
contract; in the absence of bodily injury or 
damage to property, only a cause of action in 
contract is available. Kaiser Aluminum & 
Chem. Corp. v. Ingersoll-Rand Co., 519 F. 
Supp. 60 (S.D. Ga. 1981). 

Contract status alone insufficient to create 
tort action. — That a party occupies a status 
that sometimes gives rise to professional 
duties, does not transform all contract dis- 
agreements into torts based on a profes- 
sional relationship. Kaiser Aluminum 8c 
Chem. Corp. v. Ingersoll-Rand Co., 519 F. 
Supp. 60 (S.D. Ga. 1981). 

Where claim lay for breach of contract for 
failure to pay commissions, no action for 
conversion of the money owed under that 
contract was maintainable. Faircloth v. A.L. 



51-1-1 



TORTS 



51-1-1 



Torts Related to Contract (Cont'd) 

Williams & Assocs., 206 Ga. App. 764, 426 
S.E.2d 601 (1992). 

Employer's duty to pay servant, contrac- 
tual duty only. — Where a person is em- 
ployed by a corporation for wages, and after 
employee has earned wages under the con- 
tract of employment, and the employer re- 
fuses to pay the employee the wages earned 
without legal process and in wanton disre- 
gard of the employee's rights and against his 
will, the only recourse available to the em- 
ployee is an action for a breach of the 
contract of employment, as the only duty 
placed upon the employer arises solely by 
reason of the contract. Mitchell v. Southern 
Dairies, Inc., 77 Ga. App. 771, 49 S.E.2d 912 
(1948). 

Contractor not liable where instructed to 
delay work. — When the work being under- 
taken is at the instance of the employ- 
er — and particularly when the alleged 
tortfeasor is working under contract with the 
employer and must perform the work sub- 
ject to the employer's requirements as to 
time and place of performance — and when 
the employer unilaterally instructs the other 
party (the contractor) to delay completion 
of the work until some later time which is 
convenient for the employer, the contractor 
cannot be held liable for an injury to an 
employee which arguably may be a result of 
the failure to complete the work contracted 
for. Church v. SMS Enters., 186 Ga. App. 791 , 
368S.E.2d554 (1988). 

Tortious interference with contractual re- 
lations is applicable only when the interfer- 
ence is done by one who is a stranger to the 
contract. Jet Air, Inc. v. National Union Fire 
Ins. Co., 189 Ga. App. 399, 375 S.E.2d 873 
(1988). 

Pleading and Practice 

Elements of complaint. — All that a plain- 
tiff in tort need allege to withstand the attack 
of a general demurrer (now motion to dis- 
miss) is the factum of the duty, whether by 
contract or otherwise, a violation of that 
duty, and damages resulting from that viola- 
tion. Parsons v. Foshee, 80 Ga. App. 127, 55 
S.E.2d 386 (1949); Adanta Paper Co. v. 
Sigmon, 82 Ga. App. 730, 62 S.E.2d 363 
(1950). 



Characterization of action based on con- 
tents of pleadings. — The nature of an 
action is to be determined, not by the desig- 
nation of the pleader, but by the intrinsic 
contents of the petition, its recitals of fact, 
the nature of the wrong sought to be reme- 
died, and the kind of relief sought. A.A.A. 
Parking, Inc. v. Bigger, 113 Ga. App. 578, 149 
S.E.2d 255 (1966). 

Sufficiency of pleadings. — Petition alleg- 
ing that the lessor in a contract of rental had 
broken several of its terms with the willful 
and malicious purpose of destroying the 
business of the lessee, and had thus de- 
stroyed it, did not set forth an actionable 
tort, the proper remedy of the lessee being 
an action for breach of contract. Georgia 
Kaolin Co. v. Walker, 54 Ga. App. 742, 189 
S.E. 88 (1936). 

A petition sounding in tort which fails to 
allege an actionable negligence and which 
fails to allege any physical injury to the 
person or any pecuniary loss, does not set 
forth a cause of action, and is subject to 
dismissal. Anderson v. Fussell, 75 Ga. App. 
866, 44 S.E.2d 694 (1947). 

Where all the damages claimed resulted 
from the trespass committed, which was a 
continuing one and which the plaintiff was 
entitled to plead, the declaration was not 
subject to special demurrers (now motion to 
dismiss). Gloss v. Jacobs, 86 Ga. App. 161, 71 
S.E.2d253 (1952). 

Where duty arose by reason of contract, 
but it was the violation of the duty, and not 
the violation of the contract, on which the 
plaintiff laid his case, the petition set out a 
cause of action. Frank Graham Co. v. Gra- 
ham, 90 Ga. App. 840, 84 S.E.2d 579 (1954). 

Original petition set out a specific cause of 
complaint sufhciendy to be amendable, 
where, if the petition was defective in any 
wise, it was only in that it omitted to allege 
sufficiently facts essential to raise the duty or 
obligation in the cause of action, and the 
trial court erred in holding that there was 
not. enough in the original petition to 
amend by. Cannon v. Hood Constr. Co., 91 
Ga. App. 20, 84 S.E.2d 604 (1954). 

Where the plaintiff's petition is based on 
the defendant's alleged nonfeasance of duty 
provided by contract and not on the defen- 
dant's misfeasance, it does not set forth a 
cause of action ex delicto. A.A.A. Parking, 
Inc. v. Bigger, 113 Ga. App. 578, 149 S.E.2d 
255 (1966). 



51-1-2 



GENERAL PROVISIONS 



51-1-2 



Contractor's complaint averring that its 
expectations arising under the contract be- 
tween contractor and roofing subcontractor 
and made applicable to supplier by its agree- 
ment with roofing subcontractor were not 
met, the basis of which was the alleged 
failure of supplier to deliver roofing material 
which met the specifications in the contract 
("negligent delivery"), not asserting that 
the roofing material supplied damaged 
other portions of the building, did not state 
a claim for damages actionable under a 



theory of negligence. AJ. Kellos Constr. Co. 
v. Balboa Ins. Co., 495 F. Supp. 408 (S.D. Ga. 
1980). 

Denial of summary judgment based on 
any type of tortious interference with a con- 
tract right to exercise an option to purchase 
was in error since both the original and the 
amended complaint revealed a lack of com- 
pliance with the notice requirement regard- 
ing any alleged tortious interference of con- 
tract. Bowling v. Gober, 206 Ga. App. 38, 424 
S.E.2d335 (1992). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 74 Am. Jur. 2d, Torts, § 1 
et seq. 

C.J.S. — 86 C.J.S., Torts, § 1 et seq. 

ALR. — Effect of statute permitting state 
to be sued upon the question of its liability 
for negligence or tort, 13 ALR 1276; 169 
ALR 105. 

Contractual relationship as affecting right 
of action for death, 115 ALR 1026. 

Prima facie tort, 16 ALR3d 1191. 

Liability in tort for interference with phy- 
sician's contract or relationship with hospi- 
tal, 7 ALR4th 572. 



Propriety of allowing person injured in 
motor vehicle accident to proceed against 
vehicle owner under theory of negligent 
entrustment where owner admits liability 
under another theory of recovery, 30 
ALR4th 838. 

Liability for injury or damage caused by 
snowplowing or snow removal operations 
and equipment, 83 ALR4th 5. 

Liability for tortious interference with pro- 
spective contractual relations involving sale 
of business, stock, or real estate, 71 ALR5th 
491. 



51-1-2. Ordinary diligence and ordinary negligence defined. 

In general, ordinary diligence is that degree of care which is exercised by 
ordinarily prudent persons under the same or similar circumstances. As 
applied to the preservation of property, the term "ordinary diligence" 
means that care which every prudent man takes of his own property of a 
similar nature. The absence of such diligence is termed ordinary negli- 
gence. (Orig. Code 1863, § 2034; Code 1868, § 2035; Code 1873, § 2061; 
Code 1882, § 2061; Civil Code 1895, § 2898; Civil Code 1910, § 3471; Code 
1933, § 105-201.) 



History of section. — The language of this 
section is derived in part from the decision 
in Southern Ry. v. Hill, 139 Ga. 549, 77 S.E. 
803 (1891). 

Law reviews. — For article, "The Georgia 
Jury and Negligence: The View from the 
Bench," see 26 Ga. L. Rev. 85 (1992). 

For case note, "Lynch v. Waters: Tolling 
Georgia's Statute of Limitations for Medical 
Malpractice," see 38 Mercer L. Rev. 1493 
(1987). 



For comment on Austin v. Smith, 96 Ga. 
App. 659, 101 S.E.2d 169 (1958), concerning 
gross negligence in relation to gratuitous 
automobile guest, see 20 Ga. B.J. 552 (1958). 
For comment on Planter's Elec. Member- 
ship Corp. v. Burke, 98 Ga. App. 380, 105 
S.E.2d 787 (1958), see 22 Ga. BJ. 249 
(1959). For comment on Thomas v. Shaw, 
217 Ga. 688, 124 S.E.2d 396 (1962), see 25 
Ga. BJ. 221 (1962). 



51-1-2 



TORTS 



51-1-2 



JUDICIAL DECISIONS 



Analysis 



General Consideration 
Applicability to Specific Cases 

1. Automobiles 

2. Contractors 

3. Dangerous Instrumentalities 

4. Railroads 

5. Speech 

6. Utilities 

7. Emergency Situations 

8. Miscellaneous 
Foreseeability 
Joint Tort-feasors 

Special Characteristics of Tort-feasor 
Statutory Violation as Negligence Per Se 
Pleading and Practice 
Jury Instructions 
Negligence as Jury Question 



General Consideration 

Negligence is defined generally as the 
absence of the exercise of ordinary dili- 
gence. Harden v. United States, 485 F. Supp. 
380 (S.D. Ga. 1980), aff'd, 688 F.2d 1025 
(5th Cir. 1982). 

Actionable negligence involves: first, the 
existence of a duty; second, the omission to 
exercise ordinary and reasonable care in 
connection therewith; and, third, injury re- 
sulting in consequence thereof. Patillo v. 
Thompson, 106 Ga. App. 808, 128 S.E.2d 
656 (1962). 

Negligence is either an act or omission. — 
Negligence consists either of the omission to 
do an act which ought to be done, or the 
omission to perform properly what one un- 
dertakes to do. Womack v. Central Ga. Gas 
Co., 85 Ga. App. 799, 70 S.E.2d 398 (1952); 
Mull v. Aetna Cas. & Sur. Co., 226 Ga. 462, 
175S.E.2d 552 (1970). 

Negligence, to be actionable, must be part 
of the proximate cause of the plaintiff's 
injury. If the injury would have occurred 
notwithstanding the acts of negligence of 
the defendant, there can be no recovery. 
Hollingsworth v. Harris, 112 Ga. App. 290, 
145S.E.2d52 (1965). 

Synonymous terms. — Carelessness and 
negligence are synonymous terms. Folds v. 
City Council, 40 Ga. App. 827, 151 S.E. 685 
(1930). 

Proper care, reasonable care, ordinary 



care and diligence are synonymous and 
proper care is the equivalent of ordinary 
care. Georgia Power Co. v. Whidock, 48 Ga. 
App. 809, 174 S.E. 162 (1934). 

Due care, ordinary care, and ordinary 
diligence are interchangeable terms. 
Criswell Baking Co. v. Milligan, 77 Ga. App. 
861,50S.E.2d 136 (1948). 

Gross negligence distinguishable. — Neg- 
ligence, including gross negligence, and will- 
ful and wanton misconduct are not con- 
strued as synonymous terms. Southern Ry. v. 
Kelley, 52 Ga. App. 137, 182 S.E. 631 (1935). 

Negligence relative to particular circum- 
stances. — The standard of ordinary and 
reasonable care is invariable, such care be- 
ing that of every prudent man. But the case 
of a prudent man varies according to cir- 
cumstances dependent upon the degree of 
danger. What is the precise legal intent of 
the term "ordinary care" must, in the na- 
ture of things, depend upon the circum- 
stances of each individual case. It is a relative 
and not an absolute term. Western 8c A.R.R. 
v. Young, 81 Ga. 397, 7 S.E. 912 (1880); 
Central R.R. 8c Banking Co. v. Ryles, 84 Ga. 
420, 11 S.E. 499 (1890). 

Ordinary care is that degree of care which 
is exercised by ordinarily prudent persons 
under the same or similar circumstances. 
Southern Ry. v. Hill, 139 Ga. 549, 77 S.E. 803 
(1913); Goldsmith v. Hazelwood, 93 Ga. 
App. 466, 92 S.E.2d 48 (1956). 

What is ordinary diligence must depend 



10 



51-1-2 



GENERAL PROVISIONS 



51-1-2 



upon the circumstances of each case; it is a 
relative and not an absolute term; and the 
care of a prudent man varies according to 
the circumstances dependent upon the de- 
gree of danger. Brown v. Mayor of Athens, 47 
Ga. App. 820, 171 S.E. 730 (1933). 

The law imposes upon a person the duty 
to exercise ordinary care to protect himself 
against the negligence of another; if there is 
little reason to apprehend danger, then litde 
care is due to be exercised, and, under such 
circumstances, little care would be "ordinary 
care" or "due care," or such care as an 
ordinarily prudent person would exercise 
under the same or similar circumstances. 
Hathcox v. Atlanta Coca-Cola Botding Co., 
50 Ga. App. 410, 178 S.E. 404 (1935). 

Ordinary care simply requires the exercise 
of due care under the circumstances, which 
involves a degree of caution commensurate 
with the danger involved. Lunsford v. Childs, 
107 Ga. App. 210, 129 S.E.2d 398 (1963). 

Due diligence is relative, a question of 
degree, and to determine due diligence the 
circumstances of each case must be consid- 
ered. R.L. Kimsey Cotton Co. v. Pacific Ins. 
Co., 224 Ga. 249, 161 S.E.2d 315 (1968). 

Same standard applies regarding both per- 
sons and property. — While this section has 
more direct reference to care of property 
than care to avoid the consequences to the 
person arising from negligence, yet the un- 
derlying idea in both instances is what would 
every prudent man have done under the 
same or similar circumstances. Nashville, C. 
& St. L. Ry. v. Peavler, 134 Ga. 618, 68 S.E. 
432 (1910). 

Ordinary care not absolute. — One is not 
liable for injury to another where his duty is 
that of ordinary care merely because of 
failure to exercise that degree of care which 
would have absolutely prevented injury. 
Lunsford v. Childs, 107 Ga. App. 210, 129 
S.E.2d398 (1963). 

Plaintiff must not be contributorily negli- 
gent. — One who recklessly tests an ob- 
served and clearly obvious danger may un- 
der the particular facts be held to have failed 
to exercise "that degree of care which is 
exercised by ordinarily prudent persons un- 
der the same or similar circumstances" and 
is guilty of contributory negligence, which 
will be deemed the proximate cause of his 
resulting injury and in the absence of willful 
or wanton misconduct by the defendant will 



preclude his recovery. Laseter v. Clark, 54 
Ga. App. 669, 189 S.E. 265 (1936). 

Plaintiff's negligence no bar to recovery 
unless proximate cause of injury. — Unless a 
petition construed most strongly against the 
pleader shows affirmatively that his negli- 
gence was the sole proximate cause of his 
injury or that he was guilty of the failure to 
exercise ordinary care to avoid the defen- 
dant's negligence after it was discovered by 
him and that failure was the proximate cause 
of his injury, he will not be barred of a 
recovery merely because the petition shows 
that he may have been guilty of some act of 
negligence per se. Purcell v. Hill, 107 Ga. 
App. 85, 129 S.E.2d 341 (1962). 

Negligence per se. — Negligence per se 
and negligence as a matter of fact differ only 
in the mode in which they are proved. In 
one case the law itself establishes negligence 
when a certain act or omission is proved and 
in the other the question of whether a 
proved fact constitutes negligence is left for 
a determination of the jury. Purcell v. Hill, 
107 Ga. App. 85, 129 S.E.2d 341 (1962). 

Cited in Southern Ry. v. Rundle, 37 Ga. 
App. 272, 139 S.E. 830 (1927); Western & 
A.R.R. v. Roberson, 44 Ga. App. 736, 162 S.E. 
842 (1932); Cain v. State, 55 Ga. App. 376, 
190 S.E. 371 (1937); Edwards v. Atlanta, B. & 
C.R.R., 63 Ga. App. 212, 10 S.E.2d 449 
(1940); Eidson v. Felder, 69 Ga. App. 225, 25 
S.E.2d 41 (1943); Tinley v. F.W. Woolworth 
Co., 70 Ga. App. 390, 28 S.E.2d 322 (1943); 
Ergle v. Davidson, 70 Ga. App. 704, 29 S.E.2d 
445 (1944); Bryant v. S.H. Kress & Co., 76 
Ga. App. 530, 46 S.E.2d 600 (1948); Irwin v. 
Torbert, 204 Ga. Ill, 49 S.E.2d 70 (1948); 
Pettit v. Stiles Hotel Co., 97 Ga. App. 137, 
102 S.E.2d 693 (1958); Emory Univ. v. Lee, 
97 Ga. App. 680, 104 S.E.2d 234 (1958); 
Hines v. Bell, 104 Ga. App. 76, 120 S.E.2d 
892 (1961); Slaughter v. Slaughter, 122 Ga. 
App. 374, 177 S.E.2d 119 (1970); Blair v. 
Manderson, 126 Ga. App. 235, 190 S.E.2d 
584 (1972); O'Pry v. Goodman, 132 Ga. App. 
191, 207 S.E.2d 674 (1974); Fox v. First Nat'l 
Bank, 145 Ga. App. 1, 243 S.E.2d 291 (1978); 
Sneider v. Crider, 148 Ga. App. 385, 251 
S.E.2d 315 (1978); Walton v. United States, 
484 F. Supp. 568 (S.D. Ga. 1980); Johnson v. 
Landing, 157 Ga. App. 313, 277 S.E.2d 307 
(1981); Holmes v. Worthey, 159 Ga. App. 
262, 282 S.E.2d 919 (1981); Getz Servs., Inc. 
v. Perloe, 173 Ga. App. 532, 327 S.E.2d 761 



11 



51-1-2 



TORTS 



51-1-2 



General Consideration (Cont'd) 

(1985); Ballenger Paving Co. v. Gaines, 231 
Ga. App. 565, 499 S.E.2d 722 (1998). 

Applicability to Specific Cases 

1. Automobiles 

Rate of speed. — Evidence that defen- 
dant, driving at 25 m.p.h., turned around 
briefly when children in back seat spilled 
bottle of milk, causing car to strike a tele- 
graph pole, did not show that defendant was 
guilty of gross negligence. Tucker v. 
Andrews, 51 Ga. App. 841, 181 S.E. 673 
(1935). 

Reasonable care towards pedestrians. — A 
pedestrian and a person with an automobile 
have each the right to use the public high- 
way; but the right of an operator of an 
automobile upon the highway is not supe- 
rior to the right of the pedestrian, and it is 
the duty of each to exercise his right with 
due regard to the corresponding rights of 
the other; the driver of an automobile is 
bound to use reasonable care, and to antic- 
ipate the presence on the streets of other 
persons having equal rights with himself to 
be there; and a pedestrian, when lawfully 
using the public highways, is not bound to 
be continually looking and listening to ascer- 
tain if cars are approaching, under the pen- 
alty that if he fails to do so, and is injured, it 
must be conclusively presumed that he was 
negligent. Eubanks v. Mullis, 51 Ga. App. 
728, 181 S.E. 604 (1935). 

The owner of an automobile owes a duty 
to others lawfully riding in it, while it is being 
operated either by him or his authorized 
agent, to exercise due care and diligence in 
its maintenance and operation. Ragsdale v. 
Love, 50 Ga. App. 900, 178 S.E. 755 (1935). 

Worn tires. — It is also a question of fact 
whether a person in operating an automo- 
bile is negligent in failing to know that it is 
equipped with a worn and abused tire, and 
whether such person who is experienced in 
the operation of automobiles and who 
knows the danger attendant upon suddenly 
applying the brakes to an automobile in an 
emergency, is, after a tire on the automobile 
has blown out while the automobile is trav- 
eling, guilty of negligence in suddenly apply- 
ing the brakes and thereby causing the au- 
tomobile to turn over and injure occupants. 



Ragsdale v. Love, 50 Ga. App. 900, 178 S.E. 
755 (1935). 

Avoiding parked cars. — A person travel- 
ing along ^ highway in an automobile who 
receives injuries from a collision between his 
automobile and one parked on a bridge in 
the highway, fails to exercise ordinary care to 
avoid the injuries and is guilty of negligence 
which proximately causes the injuries, if he 
would have seen the parked automobile in 
time to bring his own automobile under 
control and avoid the collision. State Hwy. 
Dep't v. Stephens, 46 Ga. App. 359, 167 S.E. 
788 (1933). 

Failure to display a proper tail light on a 
motor vehicle parked along a public highway 
on a dark night is negligence per se, and 
where it is the proximate cause of any injury, 
the owner of the vehicle is liable therefor. 
Adams v. Jackson, 45 Ga. App. 860, 166 S.E. 
258 (1932). 

The competency of the driver is a proper 
matter for consideration on an issue of 
negligence; and where he has failed, by 
reason of his incompetency or inexperience, 
to manage his car in a reasonably prudent 
and careful manner he is liable for any 
resulting injury. Luxenburg v. Aycock, 41 Ga. 
App. 722, 154 S.E. 460 (1930). 

Driver must possess necessary degree of 
skill. — Ordinary care in the operation of a 
motor vehicle requires that a driver or oper- 
ator shall be physically capable of operating 
it and shall possess skill and experience 
sufficient to operate it with reasonable safety. 
Luxenburg v. Aycock, 41 Ga. App. 722, 154 
S.E. 460 (1930). 

Mere inexperience not equal to negli- 
gence. — In the absence of any evidence 
tending to prove negligence of the driver, 
the mere fact that he was inexperienced is 
not sufficient to charge him with liability for 
an accident in which the car was involved. 
Luxenburg v. Aycock, 41 Ga. App. 722, 154 
S.E. 460 (1930). 

Evidence of prior negligence. — Proof of 
the allegedly negligent operator's prior driv- 
ing record, or of his general character for 
carelessness or recklessness in driving, is 
impermissible. Thomason v. Harper, 162 Ga. 
App. 441, 289 S.E.2d 773 (1982). 

Negligent entrustment. — Under the the- 
ory of negligent entrustment, liability is 
predicated on a negligent act of the owner in 
lending his automobile to another to drive, 



12 



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GENERAL PROVISIONS 



51-1-2 



with actual knowledge that the driver is 
incompetent or habitually reckless, and this 
negligence must concur, as a part of the 
proximate cause, with the negligent conduct 
of the driver on account of his incompetency 
and recklessness. Thomason v. Harper, 162 
Ga. App. 441, 289 S.E.2d 773 (1982). 

Under the doctrine of negligent entrust- 
ment, the entrustor's negligence must con- 
cur with the driver's negligence to proxi- 
mately cause damage to the plaintiff. Unless 
the plaintiff can prove the driver of the 
automobile was negligent, the entrustor's 
failure to ascertain whether the driver had a 
valid license is of no consequence. Schofield 
v. Hertz Corp., 201 Ga. App. 830, 412 S.E.2d 
853 (1991), cert, denied, 201 Ga. App. 904, 
412 S.E.2d 853 (1992). 

2. Contractors 

Inherently dangerous condition. — The 

contractor is liable where the work done and 
turned over by him is so negligendy defec- 
tive as to be imminendy dangerous to third 
persons. Derryberry v. Robinson, 154 Ga. 
App. 694, 269 S.E.2d 525 (1980). 

Nuisance per se. — The contractor is 
liable where the work is a nuisance per se, or 
inherently or intrinsically dangerous. 
Derryberry v. Robinson, 154 Ga. App. 694, 
269S.E.2d525 (1980). 

3. Dangerous Instrumentalities 

Degree of care proportionate to danger. 

— One is under a legal duty to use a 
dangerous instrument with a degree of care 
in proportion to the danger of the instru- 
ment. Harden v. United States, 485 F. Supp. 
380 (S.D. Ga. 1980), aff'd, 688 F.2d 1025 
(5th Cir. 1982). 

Extraordinary care not required. — In the 
case of dangerous instrumentalities the de- 
fendant's duty is one of ordinary and not 
extraordinary care. Aretz v. United States, 
503 F. Supp. 260 (S.D. Ga. 1977), aff'd, 660 
F.2d531 (5th Cir. 1981). 

When greater caution appropriate. — Or- 
dinary care as to a thing which is subtie, 
violent and dangerous may require a greater 
degree of caution than does an agency which 
lacks these dangerous propensities. Aretz v. 
United States, 503 F. Supp. 260 (S.D. Ga. 
1977), aff'd, 660 F.2d 531 (5th Cir. 1981). 

A person responsible for a dangerous 
place or instrumentality must guard, cover, 



or protect it for the safety of persons right- 
fully at or near it, and his failure to do so is 
negligence, rendering him liable to a person 
who, without fault on his part, is injured as a 
result thereof. Coffer v. Bradshaw, 46 Ga. 
App. 143, 167 S.E. 119 (1932). 

4. Railroads 

Railroad liable for lack of due care to 
person on tracks. — If the presence of a 
trespasser on the track at the time and place 
of the injury is brought about by peculiar 
facts and circumstances which relieve him 
from the guilt of a lack of ordinary care in 
thus exposing himself, the company might 
be liable for a mere lack of ordinary care on 
its part in failing to anticipate his presence at 
a time when and a place where it was 
charged with such duty, and in thereafter 
failing to take such proper precautions for 
his safety as might seem reasonably neces- 
sary. Southern Ry. v. Kelley, 52 Ga. App. 137, 
182 S.E. 631 (1935). 

Lack of ordinary care not necessarily will- 
ful and wanton. — While the mere failure of 
the employees of a railway company to dis- 
cover the presence of a trespasser at a place 
where and a time when it was their duty to 
anticipate his presence might amount to a 
lack of ordinary care on the part of the 
company, it would not ordinarily and in and 
of itself amount to willful and wanton mis- 
conduct, so as to render the company liable 
in a case where the injured person himself 
was guilty of a lack of ordinary care. Central 
of Ga. Ry. v. Stamps, 48 Ga. App. 309, 172 
S.E. 806 (1934); Southern Ry. v. Kelley, 52 
Ga. App. 137, 182 S.E. 631 (1935). 

Plaintiff's presence on track not negli- 
gence per se. — It is not per se negligent for 
one not aware of the approach of the train to 
attempt to cross the track without stopping, 
looking, or listening. Hadaway v. Southern 
Ry., 41 Ga. App. 669, 154 S.E. 296 (1930). 

The failure of a person who is unaware of 
the approach of a train to stop, look, or 
listen, does not, as a matter of law render 
such person guilty of a lack of ordinary care 
such as would prevent a recovery, except for 
willful and wanton misconduct on the part 
of the company. Porter v. Southern Ry., 73 
Ga. App. 718, 37 S.E.2d 831 (1946). 

Plaintiff not negligent where reasonable 
care exercised. — Where the deceased made 
a reasonable effort to ascertain whether or 



13 



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TORTS 



51-1-2 



Applicability to Specific Cases (Cont'd) 
4. Railroads (Cont'd) 

not he could safely cross the railroad track, a 
court cannot say, as a matter of law, that he 
was not in the exercise of due care in 
undertaking to cross the track under the 
circumstances alleged. Porter v. Southern 
Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946). 

Plaintiff's negligence bars recovery if de- 
fendant's negligence not wanton. — One 
who recklessly tests an observed and clearly 
obvious danger, such as attempting to beat a 
near and rapidly approaching railroad train 
or streetcar over a crossing, or to pass an 
intersecting highway in front of a near and 
speeding automobile having the right of way, 
notwithstanding his own honest but mis- 
taken judgment that he has ample time to 
get across, may under the particular facts be 
held to have failed to exercise that degree of 
care which is exercised by ordinarily prudent 
persons under the same or similar circum- 
stances and may be held to be guilty of 
contributory negligence, which will be 
deemed the proximate cause of his resulting 
injury, and which will, in the absence of 
willful or wanton misconduct by the defen- 
dant, preclude his recovery. Porter v. South- 
ern Ry., 73 Ga. App. 718, 37 S.E.2d 831 
(1946). 

One who deliberately goes upon a railroad 
track in front of an approaching train, think- 
ing that he can cross before the train reaches 
him, and miscalculating its speed because he 
is in front of it, cannot recover for injuries 
resulting from being run down by the train, 
although the company's servants may also 
have been negligent in running at a high 
rate of speed at that point, and also in failing 
to check the speed of the train at a public 
road which crossed the track between the 
place where the train was when first seen by 
the plaintiff and the point at which the 
injury occurred. Porter v. Southern Ry., 73 
Ga. App. 718, 37 S.E.2d 831 (1946). 

Decedent's negligence bars action by 
widow. — If a deceased person could not 
have recovered for injuries to himself had he 
survived the collision, because he was lack- 
ing in ordinary care in undertaking to cross 
the railroad tracks, his widow cannot recover 
for his death. Porter v. Southern Ry., 73 Ga. 
App. 718, 37 S.E.2d 831 (1946). 



5. Speech 

Television broadcast. — Even though the 
statements concerning sound effects could 
pose a foreseeable risk of injury to a child 
who attempted to mimic the segment of the 
television show, the statements did not pose 
a clear and present danger of injury as 
required by the first amendment. Walt 
Disney Prods., Inc. v. Shannon, 247 Ga. 402, 
276S.E.2d 580 (1981). 

6. Utilities 

Construction and maintenance of equip- 
ment. — A power company is charged with 
the duty of exercising ordinary care in the 
construction and maintenance of its wires, 
poles, transformers, and equipment. Collins 
v. Altamaha Elec. Membership Corp., 151 
Ga. App. 491, 260 S.E.2d 540 (1979). 

Utility poles in middle of street. — Where, 
in a city street about 80 feet wide, the city has 
authorized the erection and maintenance, 
longitudinally down the middle of the street, 
of a series of poles which support electrical 
wires, and on either side of the poles there 
remain driveways approximately 40 feet in 
width each, and the poles cause no substan- 
tial interference with the lawful use of the 
road or danger, the maintenance of the 
poles in the street does not constitute negli- 
gence, either as matter of law or in fact. 
South Ga. Power Co. v. Smith, 42 Ga. App. 
100, 155 S.E. 80 (1930). 

Easement rights not defense to negli- 
gence. — One may not, in the process of 
committing a negligent act, simultaneously 
create "property rights" which will insulate 
one from liability for the negligent act. A 
defendant's broadly worded easement may 
allow it to run power lines in any way or in 
any place it chooses in relation to the grant- 
ee's property, but the easement does not 
relieve defendant from the duty to use ordi- 
nary care for human safety when it does run 
the lines. Savannah Elec. & Power Co. v. 
Holton, 127 Ga. App. 447, 193 S.E.2d 866 
(1972). 

7. Emergency Situations 

"Emergency" defined. — An emergency is 
a "sudden peril caused by circumstances in 
which the defendant did not participate and 
which offered him a choice of conduct with- 



14 



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GENERAL PROVISIONS 



51-1-2 



out time for thought so that negligence in 
his choice might be attributed not to lack of 
care but to lack of time to assess the situa- 
tion." Lingo v. Brasington, 202 Ga. App. 813, 
415S.E.2d534 (1992). 

Duty measured in light of emergency. — 
One confronted with a sudden emergency, 
without sufficient time to determine accu- 
rately and with certainty the best thing to be 
done, is not held to the same standards of 
judgment as would be required if more time 
for deliberation existed, and the require- 
ment of the law upon such a person remains 
as ordinary diligence under all the facts and 
circumstances of the situation. Central of 
Ga. Ry. v. Barnes, 46 Ga. App. 158, 167 S.E. 
217 (1932); Harden v. United States, 485 F. 
Supp. 380 (S.D. Ga. 1980), afTd, 688 F.2d 
1025 (5th Cir. 1982). 

Culpable negligence will not be attributed 
to person who, in dire emergency, endeavors 
to save the life of another person. Corrie v. 
Hollaran, 51 Ga. App. 910, 181 S.E. 709 
(1935). 

8. Miscellaneous 

Master's liability to servant. — While a 
servant is bound to observe open and obvi- 
ous dangers such as would be disclosed by 
the exercise of ordinary care, he has the 
right to assume that his master has per- 
formed the duty of furnishing him with a 
safe place to work and is under no obligation 
to inspect the same in order to discover 
latent defects not open to ordinary observa- 
tion; a danger arising from an unsafe place is 
not included among the risks assumed by 
the servant. Nashville, C. 8c St. L. Ry. v. 
Hilderbrand, 48 Ga. App. 140, 172 S.E. 87 
(1933). 

Timber lease. — It cannot be presumed 
that either of the parties to a timber lease 
intended waste, and therefore it must have 
been intended by both of them that the lease 
would include, with respect to size, only such 
timber as an ordinarily prudent owner 
would use or lease. Dorsey v. Clements, 202 
Ga. 820, 44 S.E.2d 783 (1947). 

If as applied to a timber lease, there was a 
custom of business or trade that became by 
implication a part of the contract, then in 
case of controversy, such custom would con- 
trol. But if no such custom existed, it would 
be permissible to show by other evidence 
what class of trees as respects dimensions 



could in ordinary prudence be used, consid- 
ering present yield and injury, if any, as 
against future growth and value, along with 
other factors. Dorsey v. Clements, 202 Ga. 
820, 44S.E.2d783 (1947). 

Publication of editorial. — Where a mag- 
azine editorial reads like a recitation of fact, 
not a pure opinion, the jury was entitled to 
find that the editor's failure to verify the 
assertions contained in it amounted to a 
failure to exercise that degree of care exer- 
cised under the same or similar circum- 
stances by ordinarily prudent persons, and 
that this negligence was imputable to the 
publisher of the magazine. Straw v. Chase 
Revel, Inc., 813 F.2d 356 (11th Cir.), cert, 
denied, 484 U.S. 856, 108 S. Ct. 164, 98 L. 
Ed. 2d 118 (1987). 

Foreseeability 

Injury must be reasonably foreseeable. — 

Negligence which is the proximate cause of 
an injury is such an act that a person of 
ordinary caution and prudence would have 
foreseen that some injury might likely result 
therefrom. Teppenpaw v. Blaylock, 126 Ga. 
App. 576, 191 S.E.2d 466 (1972). 

Test of reasonableness. — In determining 
the existence of negligence, a governing 
consideration is what should have been rea- 
sonably foreseen. Aretz v. United States, 503 
F. Supp. 260 (S.D. Ga. 1977), afTd, 660 F.2d 
531 (5th Cir. 1981). 

No need to foresee specific consequences. 
— In order for a party to be liable as for 
negligence, it is not necessary that he should 
have been able to anticipate the particular 
consequences which ensued; it is sufficient if 
in ordinary prudence he might have fore- 
seen that some injury would result from his 
act or omission, or that consequences of a 
generally injurious nature might result. 
Emory Univ. v. Lee, 97 Ga. App. 680, 104 
S.E.2d 234 (1958); Aretz v. United States, 
503 F. Supp. 260 (S.D. Ga. 1977), afTd, 660 
F.2d 531 (5th Cir. 1981); Mixon v. Dobbs 
Houses, Inc., 149 Ga. App. 481, 254 S.E.2d 
864 (1979). 

Remote possibilities not reasonably fore- 
seeable. — One is not bound to anticipate or 
foresee and provide against that which is 
unusual or that which is only remotely and 
slighdy probable. Aretz v. United States, 503 
F. Supp. 260 (S.D. Ga. 1977), afTd, 660 F.2d 
531 (5th Cir. 1981); Bettis v. United States, 



15 



51-1-2 



TORTS 



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Foreseeability (Cont'd) 

635 F.2d 1144 (5th Cir. 1981). 

Though act by another not necessarily too 
remote. — Negligence of a joint tort-feasor is 
not, as a matter of law, too remote if it was 
reasonably anticipatable that negligence in 
creating a dangerous condition would, in 
conjunction with the negligent act of an- 
other, cause injury to the plaintiff. Aretz v. 
United States, 503 F. Supp. 260 (S.D. Ga. 
1977), aff'd, 660 F.2d 531 (5th Cir. 1981). 

In a situation where the injured parties 
were rightfully on the property engaging in 
ordinary farm operations and the negli- 
gence of the defendant in failing to properly 
construct, inspect and maintain its electrical 
wires and utility poles was one ''cause in 
fact" of the injuries, the causal connection 
between an original act of negligence and 
injury to another is not broken by the "in- 
tervening" act if it could reasonably have 
been anticipated or foreseen by the original 
wrongdoer. Collins v. Altamaha Elec. Mem- 
bership Corp., 151 Ga. App. 491, 260 S.E.2d 
540 (1979). 

Especially acts performed by children. — 
There are many situations in which the 
hypothetical reasonable man would be ex- 
pected to anticipate and guard against the 
conduct of others. And when children are in 
the vicinity, much is necessarily to be ex- 
pected of them which would not be looked 
for on the part of an adult. Walt Disney 
Prods., Inc. v. Shannon, 247 Ga. 402, 276 
S.E.2d580 (1981). 

Foreseeability is jury question. — The 
foreseeability of an intervening agency in 
the causal relationship between the 
tort-feasor's negligence and the.' resulting 
injury is for the jury where reasonable minds 
might differ. Collins v. Altamaha Elec. Mem- 
bership Corp., 151 Ga. App. 491, 260 S.E.2d 
540 (1979). 

Joint Tort-feasors 

Where there was no concert of action, and 
the acts result in a single and indivisible 
injury, the tort is joint. Parks v. Palmer, 151 
Ga. App. 468, 260 S.E.2d 493 (1979). 

Suit against jointly negligent tort-feasors. 
— If the alleged negligent acts of two or 
more tort-feasors result in a single and indi- 
visible injury, such as death, the alleged 
tort-feasors may be sued jointly. Parks v. 



Palmer, 151 Ga. App. 468, 260 S.E.2d 493 
(1979). 
Subsequently negligent tort-feasor. — An 

original tort-feasor and a subsequently neg- 
ligent physician can be joint tort-feasors. 
Parks v. Palmer, 151 Ga. App. 468, 260 S.E.2d 
493 (1979). 

Special Characteristics of Tort-feasor 

Standard of due care generally objective. 

— The standard of conduct which the com- 
munity demands must be an external and 
objective one, rather than the individual 
judgment, good or bad, of the particular 
actor, and it must be, so far as possible, the 
same for all persons, since the law can have 
no favorites. McNeeley v. M. & M. Supermar- 
kets, Inc., 154 Ga. App. 675, 269 S.E.2d 483 
(1980). 

Ordinary care is not what any particular 
person does under given circumstances, but 
what the ordinarily prudent person does. 
Southeastern Air Servs., Inc. v. Edwards, 74 
Ga. App. 582, 40 S.E.2d 572 (1946). 

Professionals held to professional stan- 
dard of care. — The law imposed upon 
persons of professional standing performing 
medical, architectural, engineering, and 
those performing other and lil skilled ser- 
vices, pursuant to their contracts made with 
their clients, an obligation to exercise a 
reasonable degree of care, skill and ability, 
such as is ordinarily exercised under similar 
conditions and like circumstances by per- 
sons employed in the same or similar profes- 
sions. This is a duty apart from any express 
contractual obligation. Mauldin v. Sheffer, 
113 Ga. App. 874, 150 S.E.2d 150 (1966). 

Young children judged by special stan- 
dard. — A child of tender years may not be 
under the duty of exercising ordinary care as 
defined in this section, but he is charged 
with the duty of exercising such care as his 
capacity, mental and physical, fits him for 
exercising; this capacity is to be judged by 
the jury from the circumstances surround- 
ing the transaction under investigation, and 
the child's conduct in reference thereto. 
Huckabee v. Grace, 48 Ga. App. 621, 173 S.E. 
744 (1934). 

Jury determines applicable standard. — 
The question for the jury is whether danger 
should have been recognized by common 
experience, or by the special experience of 
the alleged wrongdoer, or by a person of 



16 



51-1-2 



GENERAL PROVISIONS 



51-1-2 



ordinary prudence and foresight. Mixon v. 
Dobbs Houses, Inc., 149 Ga. App. 481, 254 
S.E.2d864 (1979). 

Statutory Violation as Negligence Per Se 

The omission of specific acts of diligence 
prescribed by statute, or by a valid municipal 
ordinance, is negligence per se. Sims v. Hoff, 
106 Ga. App. 626, 127 S.E.2d 679 (1962). 

Where train is run at crossing at rate of 
speed in excess of that limited by ordinance, 
it is negligence per se, and the railroad 
company is liable if such speed is the proxi- 
mate cause of the injury. Central of Ga. Ry. v. 
Barnes, 46 Ga. App. 158, 167 S.E. 217 
(1932). 

Violation of valid municipal ordinance 
regulating traffic along public street is negli- 
gence per se. Griffin v. Browning, 51 Ga. 
App. 743, 181 S.E. 801 (1935). 

Violation of statute must be proximate 
cause. — Where the violation of a penal 
statute by the defendant is the proximate 
cause of the injury complained of, the de- 
fendant is guilty of negligence per se autho- 
rizing recovery. Shermer v. Crowe, 53 Ga. 
App. 418, 186 S.E. 224 (1936). 

Plaintiff must be in class protected by 
statute. — In order for the violation of some 
statutory duty to be negligence per se, the 
person claiming it to be such must be within 
the class for whose benefit the statute was 
passed. National Upholstery Co. v. Padgett, 
108 Ga. App. 857, 134 S.E.2d 856 (1964). 

Violation of statute must also amount to 
violation of duty owed plaintiff. — An act 
prohibited by a penal statute, and which 
might be negligence as a matter of law, is not 
negligence unless its commission is in viola- 
tion of some duty owing under the circum- 
stances by the person committing the act to 
another person and is capable of having a 
causal connection with the injury inflicted. 
Sims v. Hoff, 106 Ga. App. 626, 127 S.E.2d 
679 (1962). 

Pleading and Practice 

Particular facts should be pleaded. — A 

general allegation of negligence is a mere 
conclusion. The conclusion may be wrong; 
and, therefore, the particular facts relied 
upon to support the conclusion should be 
pleaded. It is permissible, however, to set 
forth the facts, and then conclude that these 



facts amount to negligence. Western & 
A.R.R. v. Crawford, 47 Ga. App. 591, 170 S.E. 
824 (1933). 

Pleading alternate forms of negligence. — 
The plaintiff may rely upon an act or omis- 
sion as constituting negligence as a matter of 
fact under the circumstances, or upon the 
violation of a statute as amounting to negli- 
gence per se or as a matter of law; further- 
more, the facts may be so pleaded as to show 
negligence of both classes in the same ac- 
tion. Reeves v. McHan, 78 Ga. App. 305, 50 
S.E.2d 787 (1948). 

Proof of ordinary negligence includes the 
proof of slight negligence, but does not 
include proof of gross negligence which is 
the higher degree thereof. Minkovitz v. Fine, 
67 Ga. App. 176, 19 S.E.2d 561 (1942). 

Gross negligence may encompass ordinary 
negligence. — Where the plaintiff sets forth 
facts and alleges acts of omission and com- 
mission on the part of the defendant which 
amount to gross negligence; and thereafter 
sets forth additional facts which would give 
rise to a duty on the part of the defendant to 
exercise ordinary care, and alleges that the 
same acts of omission and commission' 
amount to ordinary neglect, such allegations 
would not be inconsistent, since any acts of 
omission or commission which amounted to 
the want of that care which is characterized 
as gross negligence would necessarily show 
an absence of that care which amounts to 
ordinary neglect. Blanchard v. Ogletree, 41 
Ga. App. 4, 152 S.E. 116 (1929). 

Effect of res ipsa loquitur. — Res ipsa 
loquitur is a rule of evidence which allows an 
inference of negligence to arise from the 
happening of an event causing an injury to 
another where it is shown that the defendant 
owned, operated and maintained, or con- 
trolled and was responsible for the manage- 
ment and maintenance of the thing doing 
the damage, and the accident was of a kind 
which, in the absence of proof of some 
external cause, does not ordinarily happen 
without negligence. Hall v. Chastain, 246 Ga. 
782, 273 S.E.2d 12 (1980). 

The rule of res ipsa loquitur applies only 
where plaintiff does not know what cause 
accident and negligence may be presumed 
from fact that an accident occurred. 
Minkovitz v. Fine, 67 Ga. App. 176, 19 S.E.2d 
561 (1942). 

Gross negligence not presumed on basis 
of res ipsa loquitur. — While the rule of 



17 



51-1-2 



TORTS 



51-1-2 



Pleading and Practice (Cont'd) 

evidence expressed in the maxim res ipsa 
loquitur may make out a prima facie case of 
ordinary negligence, it is insufficient in itself 
to make out a prima facie case of gross 
negligence. Minkovitz v. Fine, 67 Ga. App. 
176, 19S.E.2d561 (1942). 

Defendant's burden where negligence pre- 
sumed. — If, considering all the surround- 
ings and accompanying circumstances, an 
event is such as in the ordinary course of 
things would not have occurred if the defen- 
dant had used ordinary care, negligence 
may be presumed, and this places upon the 
defendant the burden of explaining the 
cause of the occurrence. McCann v. Lindsey, 
109 Ga. App. 104, 135 S.E.2d 519 (1964). 

Jury Instructions 

Omission of words "every prudent man" 
from an instruction applying this section was 
fatal. Brown Store Co. v. Chattahoochee 
Lumber Co., 1 Ga. App. 609, 57 S.E. 1043 
(1907). 

The words "ordinary care" are 
self-explanatory, and furnish the jury with 
degree of care required of defendant in 
case, in the absence of a timely request for a 
further definition, and the same can also be 
said to be true of the words 'due care." 
Criswell Baking Co. v. Milligan, 77 Ga. App. 
861, 50S.E.2d 136 (1948). 

No jury instruction need be given absent a 
request. — In the absence of a written 
request for the court to define to the jury the 
meaning of "ordinary and reasonable care 
and diligence," there was no error in the 
omission to do so. It is doubtful if any 
specific definition would enlighten the jury, 
or make any clearer the plain meaning of 
these simple words. Georgia Power Co. v. 
Whidock, 48 Ga. App. 809, 174 S.E. 162 
(1934); City of Camilla v. May, 70 Ga. App. 
136, 27S.E.2d777 (1943). 

Instruction based on former Code lan- 
guage not error where new Code language 
was substantially similar. — There being no 
substantial difference between the defini- 
tions of ordinary care given in the Civil Code 
of 1910 and in the Code of 1933, in a 
damage suit based on the negligence of the 
defendant, it was not prejudicial error re- 
quiring the grant of a new trial for the court 
to give in charge to the jury the definition as 



contained in the Civil Code of 1910, rather 
than that contained in the Code of 1933. 
Pollard v. Duffee, 56 Ga. App. 523, 193 S.E. 
258 (1937);, Pollard v. Boatwright, 57 Ga. 
App. 565, 196 S.E. 215 (1938). 

Standard of ordinary diligence not vari- 
able. — The court erred in charging that the 
standard of ordinary diligence is variable; 
the standard of ordinary diligence is invari- 
able. Wilson v. Garrett, 92 Ga. App. 820, 90 
S.E.2d 74 (1955); Tudor v. Bodeker, 94 Ga. 
App. 191,94S.E.2d63 (1956). 

The trial court erred in charging that the 
precise legal term "ordinary care" must in 
the nature of the case depend upon the 
circumstances of each individual case. Tudor 
v. Bodeker, 94 Ga. App. 191, 94 S.E.2d 63 
(1956). 

Care in manufacturing bottled drinks. — 
The court did not err in the instructions to 
the jury as to the care and diligence required 
of one manufacturing botded drinks for 
sale, or in charging that "if the defendant 
was not negligent and did exercise ordinary 
care, and any foreign substance got into the 
botde notwithstanding ordinary care, that 
would be what the law designates as an 
unavoidable accident, for the occurrence of 
which the defendant would not be liable." 
Hathcox v. AUanta Coca-Cola Bottling Co., 
50 Ga. App. 410, 178 S.E. 404 (1935). 

Care in operating automobile. — While it 
is error to charge the jury that the degree of 
care exercised must be such as would or 
could prevent injury to others, it is not error 
to charge that a defendant in the operation 
of his car is required to use ordinary care to 
prevent injury to others as in such case the 
requirement that the defendant be in the 
exercise of ordinary care is, in fact, for the 
purpose of preventing injury to others. 
Georgia Power Co. v. Burger, 63 Ga. App. 
784, 11 S.E.2d834 (1940). 

Deficient charge on negligence. — Charge 
which implied that negligence is the breach 
of an absolute duty to avoid injuring others 
rather than a failure to exercise "that degree 
of care which is exercised by ordinarily pru- 
dent persons under the same or similar 
circumstances" was deficient, and the 
court's failure to give a correct charge on 
this fundamental principle was reversible 
error. T.J. Morris Co. v. Dykes, 197 Ga. App. 
392, 398 S.E.2d 403 (1990). 



18 



51-1-2 



GENERAL PROVISIONS 



51-1-2 



Negligence as Jury Question 

Negligence is jury question except in in- 
disputable cases. — Questions of negligence 
and diligence and of cause and proximate 
cause and whose negligence constituted the 
proximate cause of the plaintiff's injuries 
are, except in plain, palpable and indisput- 
able cases, solely for the jury, and the courts 
will decline to decide such questions unless 
reasonable minds cannot differ as to the 
conclusions to be reached. Bohler v. Ownes, 
60 Ga. 185 (1878); Adanta, B. & C.R.R. v. 
Smith, 43 Ga. App. 457, 159 S.E. 298 (1931); 
Brown v. Savannah Elec. 8c Power Co., 46 Ga. 
App. 393, 167 S.E. 773 (1932); Queen v. 
Patent Scaffolding Co., 46 Ga. App. 364, 167 
S.E. 789 (1933); Mason v. Frankel, 49 Ga. 
App. 145, 174 S.E. 546 (1934); Tybee Amuse- 
ment Co. v. Odum, 51 Ga. App. 1, 179 S.E. 
415 (1935); Eubanks v. Mullis, 51 Ga. App. 
728, 181 S.E. 604 (1935); Knowlesv. La Rue, 
102 Ga. App. 350, 116 S.E.2d 248 (1960); 
Pannell v. Fuqua, 111 Ga. App. 18, 140 
S.E.2d 280 (1965); Krystal Co. v. Butler, 149 
Ga. App. 696, 256 S.E.2d 96 (1979); 
Manheim Servs. Corp. v. Connell, 153 Ga. 
App. 533, 265 S.E.2d 862 (1980); Brooks v. 
Douglas, 154 Ga. App. 54, 267 S.E.2d 495 
(1980); McKeighan v. Long, 154 Ga. App. 
171, 268 S.E.2d 674 (1980); Garner v. Driver, 
155 Ga. App. 322, 270 S.E.2d 863 (1980); 
Sugrue v. Flint Elec. Membership Corp., 155 
Ga. App. 481, 270 S.E.2d 921 (1980); Shan- 
non v. Walt Disney Prods., Inc., 156 Ga. App. 
545, 275 S.E.2d 121 (1980); Herren v. Abba 
Cab Co., 155 Ga. App. 443, 271 S.E.2d 11 
(1981); Lozynsky v. Hutchinson, 159 Ga. 
App. 715, 285 S.E.2d 70 (1981). 

In Georgia, the question of negligence is 
almost always a question for the jury. Fraley 
ex rel. Fraley v. Lake Winnepesaukah, Inc., 
631 F. Supp. 160 (N.D. Ga. 1986). 

Contributory negligence also jury ques- 
tion. — One who recklessly tests an observed 
and clearly obvious peril is guilty of lack of 
ordinary care. In plain and palpable cases, it 
will be so held as a matter of law; otherwise, 
questions as to such negligence as well as 
other questions of negligence by the parties, 
and as to the proximate cause of the injury, 
present issues for the jury. Central of Ga. Ry. 
v. Jones, 43 Ga. App. 507, 159 S.E. 613 
(1931); Laseter v. Clark, 54 Ga. App. 669, 
189 S.E. 265 (1936); Brooks v. Douglas, 154 
Ga. App. 54, 267 S.E.2d 495 (1980). 



In an action against a railroad company 
for injuries received by a person lawfully 
upon a railroad crossing, the question of 
what such person must or must not do, in 
order to free himself of guilt of lack of 
ordinary care constituting the proximate 
cause of his injury, is a question for the jury. 
Porter v. Southern Ry, 73 Ga. App. 718, 37 
S.E.2d831 (1946). 

Questions of willful and wanton negli- 
gence. — The exact point where ordinary 
negligence or the lack of ordinary care 
passes into and becomes willful and wanton 
negligence is a question for the jury, under 
definite instruction from the trial judge that 
the facts must show that the failure to exer- 
cise ordinary care was not only negligence 
but that it amounted to willful and wanton 
negligence. Humphries v. Southern Ry, 51 
Ga. App. 585, 181 S.E. 135 (1935). 

Questions of gross and slight negligence. 
— Questions of negligence and diligence, 
even of gross negligence and slight dili- 
gence, are matters which should usually be 
determined by a jury. Pitcher v. Curtis, 43 
Ga. App. 622, 159 S.E. 783 (1931). 

Except where a particular act is declared 
to be negligence, either by statute or by valid 
municipal ordinance, the question as to what 
acts do or do not constitute negligence is for 
determination by the jury. Brown v. Savan- 
nah Elec. & Power Co., 46 Ga. App. 393, 167 
S.E. 773 (1932). 

Condition of utility pole as contributing 
cause. — Where genuine issues of material 
fact remain in a tort case as to whether the 
condition of a utility pole was a contributing 
cause to the injuries sustained, any grant of 
summary judgment is contrary to law and 
expressly disavowed. Collins v. Altamaha 
Elec. Membership Corp., 151 Ga. App. 491, 
260S.E.2d540 (1979). 

Negligence of child guest. — In automo- 
bile collision cases, whether a child guest of 
tender years exercised the measure of due 
care required by the Code under the actual 
circumstances of the occasion and situation, 
is a question peculiarly for a jury, and not a 
question of law to be decided by the court, 
except in clear and palpable cases. 
Eddleman v. Askew, 50 Ga. App. 540, 179 
S.E. 247 (1935). 

Negligence of pedestrian. — Where a 
pedestrian, after passing between two 
parked automobiles, looked to his left for 



19 



51-1-2 



TORTS 



51-1-2 



Negligence as Jury Question (Cont'd) 

traffic, but instantly, and before he had time 
to look to his right, was struck and injured by 
an automobile being driven on the left side 
of the street, that is "astraddle" and to the 
left of the center of said street, and where 
the pedestrian could have seen the automo- 
bile had he had time to look to his right, and 



the driver of the automobile could have seen 
the pedestrian had he been looking, and 
where the street to the right of the driver of 
the automobile at this point was clear and 
could have been used by said automobile at 
the time of the accident, it was a question for 
a jury to determine whose negligence was 
responsible for the injury. Eubanks v. Mullis, 
51 Ga. App. 728, 181 S.E. 604 (1935). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 57A Am. Jur. 2d, Negli- 
gence, §§ 6, 7, 11, 12, 16, 233, 242, 255. 

C.J.S. — 65 C.J.S., Negligence, §§ 1, 8, 11 
et seq. 

ALR. — Failure to stop, look, and listen at 
railroad crossing as negligence per se, 1 ALR 
203; 2 ALR 767; 41 ALR 405. 

Presumption of negligence from throwing 
passenger from seat, 5 ALR 1034. 

Carrier's duty to passenger while train is 
going through tunnel, 9 ALR 96. 

Violation of statute or ordinance regulat- 
ing movement of vehicles as affecting viola- 
tor's right to recover for negligence, 12 ALR 
458. 

Contributory negligence in falling on slip- 
pery walk, 13 ALR 73. 

Driving automobile across track in front of 
streetcar that has stopped to take on or let 
off passengers as negligence or contributory 
negligence, 14 ALR 811. 

Negligence in stopping automobile on 
streetcar track for purpose of taking on or 
letting off person, 15 ALR 236. 

Automobiles: liability of owner or opera- 
tor for injury to guest, 20 ALR 1014; 26 ALR 
1425; 40 ALR 1338; 47 ALR 327; 51 ALR 581; 
61 ALR 1252; 65 ALR 952; 61 ALR 1252; 65 
ALR 952. 

Res ipsa loquitur as affected by circum- 
stances tending to negative negligence by 
defendant, 22 ALR 1471. 

Duty to check speed of train upon discov- 
ering livestock on or near tracks, 23 ALR 
148. 

When automobile is under control, 28 
ALR 952. 

Duty of carrier to guard young children 
against danger of falling from car, 28 ALR 
1035. 

Contributory negligence in stepping into 
roadway where view is obscured by smoke, 28 
ALR 1279. 



Constitutionality of statute or ordinance 
denying remedy for personal injury as a 
result of simple negligence, 36 ALR 1400. 

Driving automobile at a speed which pre- 
vents stopping within length of vision as 
negligence, 44 ALR 1403; 58 ALR 1493; 87 
ALR 900; 97 ALR 546. 

Presence of young child in street unat- 
tended as negligence or evidence of negli- 
gence, 51 ALR 209. 

Attractive nuisances, 53 ALR 1344; 60 ALR 
1444. 

Restoring electric current after automatic 
breaking of current as negligence, 57 ALR 
1065. 

Custom as a standard of care, 68 ALR 
1400. 

Ownership of automobile as prima facie 
evidence of responsibility for negligence of 
person operating it, 74 ALR 951; 96 ALR 
634. 

Excessive speed of automobile as affecting 
question whether excavation or other defect 
in highway is the proximate cause of acci- 
dent, 82 ALR 294. 

Differences with respect to degree or cri- 
terion of negligence, between lex loci 
delicti, and lex fori, as ground for refusal to 
entertain action for foreign tort, 84 ALR 
1268. 

Right of way at street or highway intersec- 
tions as dependent upon, or independent 
of, care or negligence, 89 ALR 838; 136 ALR 
1497. 

Duty of federal courts to follow state court 
decisions as to degree or character of negli- 
gence which gives rise to cause of action, 91 
ALR 751. 

Duty to guard against danger to children 
by electric wires, 100 ALR 621. 

Negligence of third person, other than 
physician or surgeon, in caring for injured 
person or in failing to follow instructions in 



20 



51-1-2 



GENERAL PROVISIONS 



51-1-2 



that regard as affecting damages recoverable 
against person causing injury, 101 ALR 559. 

Automobiles: cutting corners as negli- 
gence, 115 ALR 1178. 

Necessity of proving specific reason for 
injury or damage to shipment of fruit or 
vegetables in order to overcome prima facie 
case against carrier where shipment was re- 
ceived in good condition and delivered in 
bad condition, 115 ALR 1274. 

Negligence or contributory negligence of 
parent in intrusting child to custody of an- 
other child, 123 ALR 147. 

Admissibility on issue of negligence or 
contributory negligence of statements warn- 
ing one of danger, 125 ALR 645. 

Conclusiveness, as to negligence or con- 
tributory negligence, of judgment in death 
action, in subsequent action between defen- 
dant in the death action and statutory ben- 
eficiary of that action, as affected by objec- 
tion of lack of identity of parties, 125 ALR 
908. 

Violation of statute or ordinance regard- 
ing safety of building or premises as creating 
or affecting liability for injuries or death, 132 
ALR 863. 

Duty of sheriff or other officer as to care of 
property levied upon by him, 138 ALR 710. 

Res ipsa loquitur distinguished from char- 
acterization of a known condition as negli- 
gence, and from the establishment of negli- 
gence by specific circumstantial evidence, 
141 ALR 1016. 

Presumption of due care by person killed 
in accident as supporting or aiding infer- 
ence of negligence by defendant, or infer- 
ence that latter's negligence was proximate 
cause of accident, 144 ALR 1473. 

Res ipsa loquitur as applied to a collision 
between a moving automobile and a stand- 
ing automobile or other vehicle, 151 ALR 
876. 

Foreseeability as an element of negligence 
and proximate cause, 155 ALR 157; 100 
ALR2d 942. 

Erosion underneath street or highway as 
ground of liability of state or municipality 
for injury, 158 ALR 784. 

Ejection of passenger as ground of 
motorbus carrier's liability for subsequent 
injury or death, 165 ALR 545. 

Negligence of automobile passenger as to 
lookout or other precaution as affecting 
question of negligence or contributory neg- 
ligence of driver, 165 ALR 596. 



Custom or practice of drivers of motor 
vehicles as affecting question of negligence, 

172 ALR 1141; 77 ALR2d 1327. 
Propriety and effect of pleading different 

degrees of negligence or wrongdoing in 
complaint seeking recovery for one injury, 

173 ALR 1231. 

Res ipsa loquitur as applicable to injury 
due to coalhole or other opening in street or 
sidewalk, 174 ALR 607. 

Child's violation of statute or ordinance as 
affecting question of his negligence or con- 
tributory negligence, 174 ALR 1170. 

Foreseeability as an element of negligence 
and proximate cause, 100 ALR2d 942. 

Custom or practice of drivers of motor 
vehicles as affecting question of negligence, 
77 ALR2d 1327. 

Duty and liability of one driving motor 
vehicle in or along rut, ridge, or the like, in 
highway, 10ALR2d901. 

Duty and liability of carrier to intoxicated 
passenger while en route, 17 ALR2d 1085. 

Applicability of res ipsa loquitur to injuries 
or death sustained by collapse, failure, or 
falling of scaffold, 22 ALR2d 1176. 

Intoxication of person injured or killed as 
affecting applicability of last clear chance 
doctrine, 26 ALR2d 308. 

Fire as attractive nuisance, 27 ALR2d 
1187. 

Issue as to negligence as a proper subject 
of declaratory judgment action, 28 ALR2d 
957. 

Sudden or unsignaled stop or slowing of 
motor vehicle as negligence, 29 ALR2d 5. 

Rights of injured guest as affected by 
obscured vision from vehicle in which he was 
riding, 42 ALR2d 350. 

Automobile operator's inexperience or 
lack of skill as affecting his liability to pas- 
senger, 43 ALR2d 1155. 

Duty and liability of municipality as re- 
gards barriers for protection of adult pedes- 
trians who may unintentionally deviate from 
street or highway into marginal or external 
hazards, 44 ALR2d 633. 

Attorney's liability for negligence in pre- 
paring or conducting litigation, 45 ALR2d 5; 
6 ALR4th 342. 

Negligence of motorist colliding with ve- 
hicle approaching in wrong lane, 47 ALR2d 
6. 

Negligence of motorist as to injury or 
damage occasioned in avoiding collision 



21 



51-1-2 



TORTS 



51-1-2 



with vehicle approaching in wrong lane, 47 
ALR2d 119. 

Admissibility in evidence of rules of defen- 
dant in action for negligence, 50 ALR2d 16. 

Negligence causing automobile accident, 
or negligence of driver subsequently ap- 
proaching scene of accident, as proximate 
cause of injury by or to the approaching car 
or to its occupants, 58 ALR2d 270. 

Duty and liability of vehicle drivers ap- 
proaching intersection of one-way street with 
other street, 62 ALR2d 275. 

Duty and liability of vehicle drivers within 
parking lot, 62 ALR2d 288. 

Duty and liability of one who voluntarily 
undertakes to care for injured person, 64 
ALR2d 1179. 

Construction, application, and effect of 
legislation making it an offense to permit, or 
imputing negligence to one who permits, an 
unauthorized or unlicensed person to oper- 
ate motor vehicle, 69 ALR2d 978. 

Ferry operator's duty and liability as re- 
gards motor vehicles and occupants thereof, 
69 ALR2d 1008. 

Negligence in operation of airplane on 
take-off, 74 ALR2d 615. 

Negligence in operation of airplane in 
landing, 74 ALR2d 628. 

Interference with airplane pilot or con- 
trols as negligence or contributory negli- 
gence, 75 ALR2d 858. 

Applicability of res ipsa loquitur doctrine 
where motor vehicle turns over on highway, 
79ALR2d211. 

Custom as to loading, unloading, or stow- 
age of cargo as standard of care in action for 
personal injury or death of seaman or long- 
shoreman, 85 ALR2d 1196. 

Failure of signaling device at crossing to 
operate, as affecting railroad company's lia- 
bility, 90 ALR2d 350. 

Rescue doctrine: negligence and contrib- 
utory negligence in suit by rescuer against 
rescued person, 4 ALR3d 558. 

Receiver's personal liability for negligence 
in failing to care for or maintain property in 
receivership, 20 ALR3d 967. 

Violation of regulation governing size or 
weight of motor vehicles, or combinations of 
vehicles and loads, on the highway as basis of 
liability for personal injury, death, or dam- 
age to private property, 21 ALR3d 989. 

Liability of corporate directors for negli- 
gence in permitting mismanagement or de- 



falcations by officers or employees, 25 
ALR3d 941. 

Right to recover damages in negligence 
for fear of injury to another, or shock or 
mental anguish at witnessing such injury, 29 
ALR3d 1337. 

Duty of one other than carrier or em- 
ployer to render assistance to one for whose 
initial injury he is not liable, 33 ALR3d 301. 

Effect of violation of safety equipment 
statute as establishing negligence in automo- 
bile accident litigation, 38 ALR3d 530. 

Nonmonetary benefits or contributions by 
rider as affecting his status under automo- 
bile guest statute, 39 ALR3d 1083. 

Automobile guest statute: status of rider as 
affected by payment, amount of which is not 
determined by expenses incurred, 39 ALR3d 
1177. 

Payments on expense-sharing basis as af- 
fecting guest status of automobile passenger, 
39ALR3d 1224. 

Weapons: application of adult standard of 
care to infant handling firearms, 47 ALR3d 
620. 

Employer's knowledge of employee's past 
criminal record as affecting liability for em- 
ployee's tortious conduct, 48 ALR3d 359. 

Necessity and propriety of instructing on 
alternative theories of negligence or breach 
of warranty, where instruction on strict lia- 
bility in tort is given in products liability case, 
52 ALR3d 101. 

Lawn mowing by minors as violation of 
child labor statutes, 56 ALR3d 1166. 

Liability or recovery in automobile negli- 
gence action as affected by absence on insuf- 
ficiency of lights on parked or standing 
motor vehicle, 61 ALR3d 13. 

Res ipsa loquitur as applied to accident 
resulting from wheel or part thereof becom- 
ing detached from motor vehicle, 79 ALR3d 
346. 

Violation of OSHA regulation as affecting 
tort liability, 79 ALR3d 962. 

Amnesiac as entitled to presumption of 
due care, 88 ALR3d 622. 

Standard of care required of trustee rep- 
resenting itself to have expert knowledge or 
skill, 91 ALR3d 904. 

Legal malpractice in connection with at- 
torney's withdrawal as counsel, 6 ALR4th 
342. 

Standard of care owed to patient by med- 
ical specialist as determined by local, "like 



22 



51-1-3 



GENERAL PROVISIONS 



51-1-3 



community," state, national, or other stan- 
dards, 18 ALR4th 603. 

Liability of donor of motor vehicle for 
injuries resulting from owner's operation, 22 
ALR4th 738. 

Newspaper's liability to reader-investor for 
negligent but nondefamatory misstatement 
of financial news, 56 ALR4th 1162. 

Products liability: toxic shock syndrome, 
59 ALR4th 50. 

Liability for injury incurred in operation 
of power golf cart, 66 ALR4th 622. 

Rescue doctrine: liability of one who neg- 
ligently causes motor vehicle accident for 
injuries to person subsequendy attempting 
to rescue persons or property, 73 ALR4th 
737. 

Legal malpractice: negligence or fault of 
client as defense, 10 ALR5th 828. 



Motorist's liability for signaling other ve- 
hicle or pedestrian to proceed, or to pass 
signaling vehicle, 14 ALR5th 193. 

Liability of school or school personnel in 
connection with suicide of student, 17 
ALR5th 179. 

Recovery of damages for expense of med- 
ical monitoring to detect or prevent future 
disease or condition, 17 ALR5th 327. 

Liability of property owner for damages 
from spread of accidental fire originating on 
property, 17 ALR5th 547. 

Tide insurer's negligent failure to discover 
and disclose defect as basis for liability in 
tort, 19 ALR5th 786. 

Liability of electric company to one other 
than employee for injury or death arising 
from commencement or resumption of ser- 
vice, 46 ALR5th 423. 



51-1-3. Extraordinary diligence and slight negligence defined. 

In general, extraordinary diligence is that extreme care and caution 
which very prudent and thoughtful persons exercise under the same or 
similar circumstances. As applied to the preservation of property, the term 
"extraordinary diligence" means that extreme care and caution which very 
prudent and thoughtful persons use in securing and preserving their own 
property. The absence of such extraordinary diligence is termed slight 
negligence. (Orig. Code 1863, § 2035; Code 1868, § 2036; Code 1873, 
§ 2062; Code 1882, § 2062; Civil Code 1895, § 2899; Civil Code 1910, 
§ 3472; Code 1933, § 105-202.) 



History of section. — The language of this 
section is derived in part from the decision 
in Alabama M. Ry. v. Guilford, 119 Ga. 523, 
46S.E. 655 (1904). 

Law reviews. — For article, "The Georgia 
Jury and Negligence: The View from the 



Bench," see 26 Ga. L. Rev. 85 (1992). 

For comment on Planter's Elec. Member- 
ship Corp. v. Bulse, 98 Ga. App. 380, 105 
S.E.2d 787 (1958), see 22 Ga. B.J. 249 

(1959). 



JUDICIAL DECISIONS 



This section applies to persons as well as 
to property. Alabama M. Ry. v. Guilford, 119 
Ga. 523, 46S.E. 655 (1904). 

Slight negligence relative to circum- 
stances. — In determining what very pru- 
dent and thoughtful persons would do un- 
der certain circumstances, the situation and 
surrounding facts, including the existence of 
an emergency if there was one, are to be 
considered. Atlanta & W.RR.R. v. Jacobs' 
Pharmacy Co., 135 Ga. 113, 68 S.E. 1039 
(1910). 



A common carrier of passengers for hire 
is bound to exercise extraordinary care and 
diligence in transportation of its passengers. 

Even slight neglect on the part of its em- 
ployee, resulting in personal injury to one 
lawfully upon one of its vehicles, may entail 
liability on the part of the carrier. Georgia 
Stages, Inc. v. Young, 73 Ga. App. 2, 35 
S.E.2d552 (1945). 

Streetcar company is bound to exercise 
extraordinary care and precaution to pre- 
vent injuring its passengers, and slight neg- 



23 



51-1-4 



TORTS 



51-1-4 



ligence on its part, when it was the proxi- 
mate cause of the alleged injury, might 
render it liable, provided the passenger him- 
self could not have avoided the injury by the 
exercise of ordinary care. Leslie v. Georgia 
Power Co., 47 Ga. App. 723, 171 S.E. 395 
(1933). 

Owner of an office building owes duty of 
extraordinary diligence to elevator passen- 
gers, cannot delegate this duty to an inde- 
pendent contractor engaged in elevator re- 
pair, and is liable for slight negligence. 
Gaffney v. EQK Realty Investors, 213 Ga. 
App. 653, 445 S.E.2d 771 (1994). 

Slight negligence is jury question. — The 
acts and facts constituting the diligence de- 
fined in this section under all the circum- 
stances of the case are questions for deter- 
mination by the jury. Stiles v. Atlanta & 



W.P.R.R., 65 Ga. 370 (1880); Richmond & 
D.R.R. v. White & Co., 88 Ga. 805, 15 S.E. 
802 (1892). 

Questions of negligence and diligence, 
even of gross negligence and slight negli- 
gence, being questions of fact and not of law, 
are as a rule to be determined by a jury. Frye 
v. Pyron, 51 Ga. App. 613, 181 S.E. 142 
(1935). 

Cited in Peavy v. Peavy, 36 Ga. App. 202, 
136 S.E. 96 (1926); Tucker v. Andrews, 51 
Ga. App. 841, 181 S.E. 673 (1935); Cain v. 
State, 55 Ga. App. 376, 190 S.E. 371 (1937); 
Southern Ry. v. Skinner, 74 Ga. App. 57, 38 
S.E.2d 756 (1946); Hines v. Bell, 104 Ga. 
App. 76, 120 S.E.2d 892 (1961); Adanta 
Transit Sys. v. Hines, 138 Ga. App. 746, 227 
S.E.2d 489 (1976); Sneider v. Crider, 148 Ga. 
App. 385, 251 S.E.2d 315 (1978). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 57A Am. Jur. 2d, Negli- 
gence, §§ 6, 7, 11, 12, 16, 233 et seq., 255. 

C.J.S. — 65 C.J.S., Negligence, §§ 1, 8, 13. 

ALR. — Duty of carrier to guard young 
children against danger of falling from car, 
28 ALR 1035. 

Liability for damages by explosives trans- 



ported along highway, 31 ALR 725; 44 ALR 
124. 

Liability of carrier for injury to passenger 
from car window, 45 ALR 1541. 

Liability of hotel, motel, or similar estab- 
lishment for damage to or loss of guest's 
automobile left on premises, 52 ALR3d 433. 



51-1-4. Slight diligence and gross negligence defined. 

In general, slight diligence is that degree of care which every man of 
common sense, however inattentive he may be, exercises under the same or 
similar circumstances. As applied to the preservation of property, the term 
"slight diligence" means that care which every man of common sense, 
however inattentive he may be, takes of his own property. The absence of 
such care is termed gross negligence. (Orig. Code 1863, § 2036; Code 1868, 
§ 2037; Code 1873, § 2063; Code 1882, § 2063; Civil Code 1895, § 2900; 
Civil Code 1910, § 3473; Code 1933, § 105-203.) 



History of section. — The language of this 
section is derived in part from the decision 
in Harris v. Reid, 30 Ga. App. 187, 117 S.E. 
256 (1923). 

Law reviews. — For article, "The Georgia 
Jury and Negligence: The View from the 
Bench," see 26 Ga. L. Rev. 85 (1992). 

For comment on Caskey v. Underwood, 89 



Ga. App. 418, 79 S.E.2d 558 (1954), finding 
that the lower court erred in defining gross 
negligence as the "entire absence of care," 
see 16 Ga. B.J. 464 (1954). For comment on 
Austin v. Smith, 96 Ga. App. 659, 101 S.E.2d 
169 (1958), concerning gross negligence in 
relation to gratuitous automobile guest, see 
20 Ga. B.J. 552 (1958). 



24 



51-1-4 



GENERAL PROVISIONS 



51-1-4 



Analysis 



JUDICIAL DECISIONS 



General Consideration 
Applicability to Specific Cases 

1. Automobiles 
Pleading and Practice 
Jury Instructions 
Gross Negligence as Jury Question 



General Consideration 

Basic definitions. — Applied to the pres- 
ervation of property, slight diligence means 
that care which every man of common sense, 
howsoever inattentive he may be, takes of his 
own property. The absence of such care is 
termed gross negligence. Frye v. Pyron, 51 
Ga. App. 613, 181 S.E. 142 (1935); Kimberly 
v. Reed, 79 Ga. App. 137, 53 S.E.2d 208 
(1949). 

"Gross negligence," as applicable to par- 
ticular facts and circumstances is defined as 
"the want of slight care and diligence," 
"such care as careless and inattentive per- 
sons would usually exercise under the cir- 
cumstances," "want of that diligence which 
even careless men are accustomed to exer- 
cise," "carelessness manifestly materially 
greater than want of common prudence." 
Rider v. Taylor, 166 Ga. App. 474, 304 S.E.2d 
557 (1983). 

Absence of ordinary diligence is not 
"gross negligence." Insurance Co. of N. Am. 
v. Leader, 121 Ga. 260, 48 S.E. 972 (1904); 
Brown Store Co. v. Chattahoochee Lumber 
Co., 121 Ga. 809, 49 S.E. 839 (1905). 

Applicability to personal injury. — While 
defined in terms of property, the rule enun- 
ciated in this section applies with equal force 
to diligence to prevent injury to the person. 
Capers v. Martin, 54 Ga. App. 555, 188 S.E. 
465 (1936); Moore v. Shirley, 68 Ga. App. 38, 
21 S.E.2d 925 (1942); Carpenter v. Lyons, 78 
Ga. App. 214, 50 S.E.2d 850 (1948). 

Willful misconduct generally distin- 
guished. — Gross negligence as defined by 
this section should not be confused with 
willful and wanton misconduct. Central of 
Ga. Ry. v. Moore, 5 Ga. App. 562, 63 S.E. 642 
(1909); Lanier v. Bugg, 32 Ga. App. 294, 123 
S.E. 145 (1924). 

Negligence, including gross negligence, 
and willful and wanton misconduct are not 
construed as synonymous terms. Southern 



Ry. v. Kelley, 52 Ga. App. 137, 182 S.E. 631 
(1935). 

Gross negligence does not amount to will- 
ful and wanton disregard for the rights of 
others, and one may be guilty of gross neg- 
ligence and still be in the exercise of some 
degree of care. Hennon v. Hardin, 78 Ga. 
App. 81, 50 S.E.2d 236 (1948). 

Willful or wanton conduct is a different 
standard than that of gross negligence. 
Southern Bell Tel. 8c Tel. Co. v. Coastal 
Transmission Serv., Inc., 167 Ga. App. 611, 
307S.E.2d83 (1983). 

Equivalency in gross and wanton negli- 
gence in certain cases. — Gross negligence is 
not regarded as the equivalent of willful and 
wanton negligence in this state, unless the 
evidence indicates that entire absence of 
care which would raise the presumption of 
conscious indifference, or that, with reckless 
indifference, the person acted with actual or 
imputed knowledge that the inevitable or 
probable consequence of his conduct would 
be to inflict injury. Blanchard v. Ogletree, 41 
Ga. App. 4, 152 S.E. 116 (1929); Frye v. 
Pyron, 51 Ga. App. 613, 181 S.E. 142 (1935); 
Dixon v. Merry Bros. Brick & Tile Co., 56 Ga. 
App. 626, 193 S.E. 599 (1937). 

Gross negligence by plaintiff a complete 
bar to recovery. — If a person knowingly 
goes into a place of danger, when there is no 
urgent necessity for him to do so, he is guilty 
of such gross negligence that as a matter of 
law he cannot recover any damages for in- 
jury he might sustain under such circum- 
stances. Yarbrough v. Georgia R.R. 8c Bank- 
ing Co., 176 Ga. 780, 168 S.E. 873 (1933). 

Cited in Epps v. Parrish, 26 Ga. App. 399, 
106 S.E. 297 (1921); Arnold v. Darby, 49 Ga. 
App. 629, 176 S.E. 914 (1934); Cain v. State, 
55 Ga. App. 376, 190 S.E. 371 (1937); White 
v. Boyd, 58 Ga. App. 219, 198 S.E. 81 (1938); 
Roberts v. Ethridge, 73 Ga. App. 400, 36 
S.E.2d 883 (1946); Cedrone v. Beck, 74 Ga. 
App. 488, 40 S.E.2d 388 (1946); Barbre v. 



25 



51-1-4 



TORTS 



51-1-4 



General Consideration (Cont'd) 

Scott, 75 Ga. App. 524, 43 S.E.2d 760 (1947); 
Parker v. Johnson, 97 Ga. App. 261, 102 
S.E.2d 917 (1958); Barrow v. Georgia Light- 
weight Aggregate Co., 103 Ga. App. 704, 120 
S.E.2d 636 (1961); Hines v. Bell, 104 Ga. 
App. 76, 120 S.E.2d 892 (1961); Porter v. 
Jack's Cookie Co., 106 Ga. App. 497, 127 
S.E.2d 313 (1962); James Talcott, Inc. v. 
Carder, 300 F.2d 654^5th Cir. 1962); Meeks 
v.Johnson, 112 Ga. App. 760, 146 S.E.2d 121 
(1965); Ray Wright Enterprises, Inc. v. 
Reaves, 128 Ga. App. 745, 197 S.E.2d 856 
(1973); Smith v. Southeastern Stages, Inc., 
479 F. Supp. 593 (N.D. Ga. 1977) ; Georgia S. 
& Fla. Ry. v. Odum, 152 Ga. App. 664, 263 
S.E.2d 469 (1979); Levine v. Keene, 178 Ga. 
App. 832, 344 S.E.2d 684 (1986). 

Applicability to Specific Cases 

1. Automobiles 

Improper operation of vehicle. — Jury 
would be authorized to find that a person 
who failed without cause to observe a dan- 
gerous but clearly visible "isle of safety" in a 
street would be guilty of gross negligence. 
Smith v. Hodges, 44 Ga. App. 318, 161 S.E. 
284 (1931). 

Evidence that defendant, driving at 25 
m.p.h., turned around briefly when children 
in back seat spilled bottle of milk, causing 
car to strike a telegraph pole, did not show 
that defendant was guilty of gross negli- 
gence. Tucker v. Andrews, 51 Ga. App. 841, 
181 S.E. 673 (1935). 

Where several witnesses in a suit by a 
passenger for injuries received in an acci- 
dent testified that a part of defendant's car 
entered the wrong side of the road at a 
distance of from 100 yards to 15 yards from 
the point of collision and continued along 
such path, and where the other driver in the 
collision testified that "I dimmed my head- 
lights, pulled over farther to the right, and 
when the approaching car was very near to 
mine it cut across the road to the left sud- 
denly, striking the left front of my car," the 
jury was authorized to find that the act of the 
defendant amounted to gross negligence. 
Atlantic Ice & Coal Corp. v. Newlin, 56 Ga. 
App. 428, 192 S.E. 915 (1937). 

While there were no allegations and no 
evidence that the speed at which defendant 



was operating automobile was in violation of 
the law or of any ordinance, or that the 
failure to stop before entering the intersec- 
tion was a violation of any ordinance, never- 
theless, the jury was authorized to find that 
such acts on the part of the defendant, 
occurring as they did in a thickly populated 
section on a heavily traveled thoroughfare, 
together with her further act of looking to 
the rear for a period of three to five seconds, 
long enough to travel 200 to 225 feet, was 
gross negligence on her part, as defined in 
this section, and was authorized to award the 
plaintiffs damages on this theory. Chastain v. 
Lawton, 87 Ga. App. 35, 73 S.E.2d 38 (1952). 

Finding is authorized that defendant is 
guilty of gross negligence in taking a chance 
of meeting and passing another automobile 
on a familiar, narrow, country dirt road 
when there is barely room to pass, when 
about 3 feet of his side of the road are 
obstructed by limbs of trees, and in turning 
briefly to his left to avoid the obstructions 
with only a guess as to whether he has time 
to get back on his side, especially since he 
knows that another automobile is approach- 
ing. Sutherland v. Woodring, 103 Ga. App. 
205, 118 S.E.2d846 (1961). 

Where evidence disclosed that driver 
failed to heed the traffic signal, failed to 
keep a lookout for traffic, and failed to 
adhere to the speed limit, such a combina- 
tion of circumstances would authorize a jury 
to find gross negligence. McDaniel v. Gysel, 
155 Ga. App. Ill, 270 S.E.2d 469 (1980). 

In order for guest passenger to recover 
against host driver, jury must find host driver 
grossly negligent. Blanchard v. Ogletree, 41 
Ga. App. 4, 152 S.E. 116 (1929); Meddin v. 
Karsman, 41 Ga. App. 282, 152 S.E. 601 
(1930); Atlantic Ice & Coal Corp. v. Newlin, 
56 Ga. App. 428, 192 S.E. 915 (1937); 
Sammons v. Webb, 86 Ga. App. 382, 71 
S.E.2d 832 (1952); McGowan v. Camp, 87 
Ga. App. 671, 75 S.E.2d 350 (1953); 
McDaniel v. Gysel, 155 Ga. App. Ill, 270 
S.E.2d469 (1980). 

Grossly negligent conduct by passenger. 
— Where a person who is in an automobile 
which is being operated by another takes the 
steering wheel and undertakes to steer the 
automobile, and while so doing fails to look 
ahead and observe the course of the auto- 
mobile, but gives his attention to what the 
operator is doing, and where the automobile 



26 



51-1-4 



GENERAL PROVISIONS 



51-1-4 



while thus being steered collides with a 
telegraph pole, and as a result of the colli- 
sion a person on the back seat is thrown 
forward and sustains a fracture of the collar 
bone and the shoulder blade and other 
injuries from the effects of which she is 
confined in a hospital for several months, 
the inference is authorized that the person 
in taking the steering wheel and steering the 
automobile, under the circumstances, was 
guilty of gross negligence. McCord v. 
Benford, 48 Ga. App. 738, 173 S.E. 208 
(1934). 

"Guest passenger" rule changed. — It has 
long been the rule in this state that one 
riding by invitation and gratuitously in an- 
other's automobile cannot recover for injury 
caused by the other's negligence in driving, 
unless it amounted to gross negligence. 
However, effective July 1, 1982, the "guest 
passenger" rule cited above was changed by 
§ 51-1-36, stating: "The operator of a motor 
vehicle owes to passengers therein the same 
duty of ordinary care owed by others." Rider 
v. Taylor, 166 Ga. App. 474, 304 S.E.2d 557 
(1983). 

No retroactive application of change in 
"guest passenger" rule. — The trial court 
did not err in refusing to apply § 51-1-36, 
changing the "guest passenger" rule as to 
the duty owed by an automobile operator to 
passengers to ordinary care, to a case involv- 
ing a January 1981 accident, since, although 
a statute is "remedial" which affects only the 
procedure and practice of the courts and 
thus may be retroactive in application, the 
"guest passenger" rule established the duty 
owed by an automobile owner or operator to 
a nonpaying guest passenger, and there is 
nothing in the enactment of § 51-1-36 which 
discloses a legislative intent to apply the 
terms thereof retroactively. Rider v. Taylor, 
166 Ga. App. 474, 304 S.E.2d 557 (1983). 

Speed alone not gross negligence. — Al- 
though speed coupled with other circum- 
stances may amount to gross negligence, 
where the record is devoid of any other 
circumstances which could be coupled with 
plaintiffs' allegation that defendant was driv- 
ing too fast for conditions, plaintiffs have 
failed to make the requisite showing of gross 
negligence. Rider v. Taylor, 166 Ga. App. 
474, 304S.E.2d557 (1983). 



Pleading and Practice 

Gross negligence, such as will authorize 
recovery by guest in automobile against his 
host, must be expressly pleaded, unless the 
facts alleged in the petition are such as to 
demand the inference of its existence. Ca- 
pers v. Martin, 54 Ga. App. 555, 188 S.E. 465 
(1936). 

Sufficiency of complaint. — Allegations 
that the defendant was guilty of gross negli- 
gence in willfully and deliberately driving 
the automobile into a ditch at the side of the 
road, without warning the petitioner of his 
intention to do so, are not subject to a 
motion to dismiss on the ground that they 
are a mere conclusion of the pleader without 
any facts alleged on which to base such 
charge of gross negligence. Frank v. 
Horovitz, 52 Ga. App. 651, 183 S.E. 835 
(1936). 

Conclusory language regarding willful 
misconduct disregarded. — Where the gra- 
vamen of the action alleged is gross negli- 
gence, the characterization in the petition of 
the act of negligence as willful and wanton is 
a mere conclusion of the pleader and may be 
treated as surplusage if it be regarded as 
attempting to allege willful and wanton mis- 
conduct, and does not affect the sufficiency 
of a cause of action for gross negligence. 
Frye v. Pyron, 51 Ga. App. 613, 181 S.E. 142 
(1935). 

Complaint against joint tort-feasors. — 
Where a petition, in a suit against two defen- 
dants, alleges that the plaintiff, while riding 
in the automobile which was owned by the 
defendant husband and at the time was 
being operated by the defendant wife, was 
injured by the automobile's overturning on 
the road as a result of the blow-out of a tire 
and the sudden application of the brakes by 
the driver while plaintiff was riding in the car 
either as a guest or in attendance on busi- 
ness for either the husband or the wife, and 
that plaintiff's injuries were proximately 
caused by the alleged negligence of both 
defendants, the allegations are sufficient as 
charging gross negligence against both de- 
fendants in the maintenance and operation 
of the automobile under the circumstances 
indicated and that such negligence was the 
proximate cause of the plaintiff's injuries. 
Ragsdale v. Love, 50 Ga. App. 900, 178 S.E. 
755 (1935). 



27 



51-1-4 



TORTS 



51-1-4 



Pleading and Practice (Cont'd) 

Allegation of gross negligence may encom- 
pass ordinary negligence. — Where the 
plaintiff sets forth facts and alleges acts of 
omission and commission on the part of the 
defendant which amount to gross negli- 
gence, and thereafter sets forth additional 
facts which would give rise to a duty on the 
part of the defendant to exercise ordinary 
care, and alleges that the same acts of omis- 
sion and commission amount to ordinary 
neglect, such allegations would not be in- 
consistent, since any acts of omission or 
commission which amounted to the want of 
that care which is characterized as gross 
negligence would necessarily show an ab- 
sence of that care which amounts to ordi- 
nary neglect. Blanchard v. Ogletree, 41 Ga. 
App. 4, 152 S.E. 116 (1929). 

Res ipsa loquitur doctrine not applicable 
to gross negligence. — While the rule of 
evidence expressed in the maxim res ipsa 
loquitur may make out a prima facie case of 
ordinary negligence, it is insufficient in itself 
to make out a prima facie case of gross 
negligence. Minkovitz v. Fine, 67 Ga. App. 
176, 19S.E.2d561 (1942). 

Jury Instructions 

A court in undertaking to give definition 
of this section should not omit the words, 
"how inattentive soever he may be." South- 
ern Mut. Ins. Co. v. Hudson, 113 Ga. 434, 38 
S.E. 964 (1901); Seaboard 8c R.R. v. Cauthen, 
115 Ga. 422,41 S.E. 653 (1902). 

It is error for trial court to use the words 
"entire absence of care" in defining gross 
negligence when the use of such expression 
can be interpreted as meaning that in order 
to prove gross negligence an entire absence 
of care must be proved. Caskey v. 
Underwood, 89 Ga. App. 418, 79 S.E.2d 558 
(1953). 

Charge improperly enlarges plaintiff's 
burden of proof. — Where a case was based 
on gross negligence by the pleadings and the 
evidence, and not on willful and wanton 
negligence or misconduct, it was error for 
the court to charge the jury that if it found 
from the evidence that the driver of the car 
showed that entire absence of care which 
would raise the presumption of conscious 
indifference, or that he acted with reckless 
indifference, or with actual or imputed 



knowledge that the inevitable or probable 
consequences of his conduct would be to 
inflict injury, the jury would be authorized 
to find that his conduct amounted to gross 
negligence, as this charge placed too great a 
burden on the plaintiff. Dixon v. Merry Bros. 
Brick 8c Tile Co., 56 Ga. App. 626, 193 S.E. 
599 (1937). 

The entire absence of care would gener- 
ally, if not always, result in wanton miscon- 
duct; also, charging the entire absence of 
care as a part of the definition of gross 
negligence would very likely confuse the jury 
and cause them to assume that before one 
could be guilty of gross negligence there 
must be an entire absence of care. Caskey v. 
Underwood, 89 Ga. App. 418, 79 S.E.2d 558 
(1953). 

Where judge gave elaborate definition of 
gross negligence and later in charge gave 
exact definition appearing in this section, 
the two definitions are in no wise conflicting. 
Hatcher v. Bray, 88 Ga. App. 344, 77 S.E.2d 
64 (1953). 

Gross Negligence as Jury Question 

When jury question is presented. — A jury 
question is presented only when reasonable 
men could disagree as to whether the facts 
alleged constitute gross negligence. Harris v. 
National Evaluation Sys., 719 F. Supp. 1081 
(N.D. Ga. 1989), aff'd, 900 F.2d 266 (11th 
Cir. 1990). 

Questions of negligence and diligence, 
even of gross negligence and slight dili- 
gence, are as a rule to be determined by jury, 
and should not be settled by the court as a 
matter of law, except in plain and indisput- 
able cases. Frye v. Pyron, 51 Ga. App. 613, 
181 S.E. 142 (1935); Frank v. Horovitz, 52 
Ga. App. 651, 183 S.E. 835 (1936); Atlantic 
Ice & Coal Corp. v. Newlin, 56 Ga. App. 428, 
192 S.E. 915 (1937); Moore v. Shirley, 68 Ga. 
App. 38, 21 S.E.2d 925 (1942); Hennon v. 
Hardin, 78 Ga. App. 81, 50 S.E.2d 236 
(1948); Carpenter v. Lyons, 78 Ga. App. 214, 
50 S.E.2d 850 (1948); Lawrence v. Hayes, 92 
Ga. App. 778, 90 S.E.2d 102 (1955); Pannell 
v. Fuqua, 111 Ga. App. 18, 140 S.E.2d 280 
(1965); McDaniel v. Gysel, 155 Ga. App. 1 11, 
270S.E.2d469 (1980). 

Where one driving an automobile is so 
inattentive as to look to the side and not 
keep a constant lookout ahead, when there 
is an object in his path which is clearly visible 



28 



51-1-4 



GENERAL PROVISIONS 



51-1-4 



that he might run into, the question is 
ordinarily one for the jury as to whether, 
under all of the proven relevant facts and 
circumstances of the case, his failure to 
exercise the precaution of looking along the 
street ahead of the vehicle is gross negli- 
gence. Capers v. Martin, 54 Ga. App. 555, 
188 S.E. 465 (1936). 

In action by a gratuitous invited guest 
against the owner of the automobile in 
which the guest was riding when injured, the 
allegations of the petition presented a jury 
question as to whether the driver was guilty 
of gross negligence. Hennon v. Hardin, 78 
Ga. App. 81, 50 S.E.2d 236 (1948). 

While violation of the speed laws alone 
would not in and of itself constitute gross 
negligence, and the violation of a state law 



by the driver of an automobile does not 
necessarily amount to gross negligence, it 
cannot be said as a matter of law that one 
driving an automobile 70 miles per hour 
around a 45 degree curve, and attempting to 
pass another automobile on such curve, is 
not guilty of gross negligence; this would be 
a question for the jury. Hennon v. Hardin, 
78 Ga. App. 81, 50 S.E.2d 236 (1948). 

The exact point where ordinary negli- 
gence or lack of ordinary care passes into 
and becomes willful and wanton negligence 
is jury question, under definite instruction 
from the trial judge that the facts must show 
that the failure to exercise ordinary care was 
not only negligence but that it amounted to 
willful and wanton negligence. Humphries v. 
Southern Ry., 51 Ga. App. 585, 181 S.E. 135 
(1935). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 57A Am. Jur. 2d, Negli- 
gence, §§ 6, 7, 11, 12, 16, 233 et seq., 243 et 
seq., 255. 

C.J.S. — 65 C.J.S., Negligence, § 1 et seq. 

ALR. — Automobiles: liability of owner or 
operator for injury to guest, 20 ALR 1014; 26 
ALR 1425; 40 ALR 1338; 47 ALR 327; 51 
ALR 581; 61 ALR 1252; 65 ALR 952; 61 ALR 
1252; 65 ALR 952. 

Duty of carrier to guard young children 
against danger of falling from car, 28 ALR 
1035. 

What amounts to gross or wanton negli- 
gence in driving an automobile precluding 
the defense of contributory negligence, 72 
ALR 1357; 92 ALR 1367; 119 ALR 654. 

What constitutes gross negligence or the 
like, within statute limiting liability of owner 
or operator of automobile for injury to 
guest, 74 ALR 1198; 86 ALR 1145; 96 ALR 
1479. 

Who is a guest within contemplation of 
statute regarding liability of owner or oper- 
ator of motor vehicle for injury to guest, 82 
ALR 1365; 95 ALR 1180. 

Test or criterion of gross negligence or 
other misconduct that will support recovery 
of exemplary damages for bodily injury or 
death unintentionally inflicted, 98 ALR 267. 

Automobiles: gross negligence, reckless- 
ness, or the like, within "guest" statute or 
rule, predicated upon manner of operating 
car on curve or hill, 136 ALR 1270. 



Conduct of operator of automobile at 
railroad crossing as gross negligence, reck- 
lessness, etc., within guest statute, 143 ALR 
1144. 

Custom or practice of drivers of motor 
vehicles as affecting question of negligence, 
172 ALR 1141; 77 ALR2d 1327. 

Custom or practice of drivers of motor 
vehicles as affecting question of negligence, 
77 ALR2d 1327. 

Payments or contributions by or on behalf 
of automobile rider as affecting his status as 
guest, 10 ALR2d 1351. 

Guest's knowledge that automobile driver 
has been drinking as precluding recovery, 
under guest statutes or equivalent 
common-law rule, 15 ALR2d 1165. 

Propriety of granting summary judgment 
in case involving issue of gross or wanton 
negligence, 50 ALR2d 1309. 

Mutual business or commercial objects or 
benefits as affecting status of rider under 
automobile guest statute, 59 ALR2d 336. 

Applicability of guest statute where motor 
vehicle accident occurs on private way or 
property, 64 ALR2d 694. 

Intoxication, unconsciousness, or mental 
incompetency of person as affecting his sta- 
tus as guest within automobile guest statute 
or similar common-law rule, 66 ALR2d 1319. 

Applicability of res ispa loquitur doctrine 
where motor vehicle turns over on highway, 
79ALR2d211. 



29 



51-1-5 



TORTS 



51-1-5 



Applicability of guest statute and its re- 
quirement of gross negligence, wanton or 
wilful misconduct, or the like, to owner's 
liability for injuries to guest in vehicle negli- 
gently entrusted to incompetent driver, 91 
ALR2d 323. 

Liability, under guest statutes, of driver or 
owner of motor vehicle for running over or 
hitting person attempting to enter the vehi- 
cle, 1 ALR3d 1083. 

Speed, alone or in connection with other 
circumstances, as gross negligence, wanton- 
ness, recklessness, or the like, under automo- 
bile guest statute, 6 ALR3d 769. 

Gross negligence, recklessness, or the like, 
within "guest" statute, predicated upon con- 
duct in passing cars ahead or position of car 
on wrong side of the road, 6 ALR3d 832. 

Share-the-ride arrangement or car pool as 
affecting status of automobile rider as guest, 
10 ALR3d 1087. 



Liability insurance as covering accident, 
damage, or injury due to wanton or wilful 
misconduct or gross negligence, 20 ALR3d 
320. 

Applicability of res ipsa loquitur where 
plaintiff must prove active or gross negli- 
gence, willful misconduct, recklessness, or 
the like, 23 ALR3d 1083. 

Nonmonetary benefits or contributions by 
rider as affecting his status under automo- 
bile guest statute, 39 ALR3d 1083. 

Automobile guest statute: status of rider as 
affected by payment, amount of which is not 
determined by expenses incurred, 39 ALR3d 
1177. 

Payments on expense-sharing basis as af- 
fecting guest status of automobile passenger, 
39 ALR3d 1224. 



51-1-5. Meaning of "due care" in reference to child of tender years. 

The term "due care," when used in reference to a child of tender years, 
is such care as the child's mental and physical capacities enable him to 
exercise in the actual circumstances of the occasion and situation under 
investigation. (Civil Code 1895, § 2901; Civil Code 1910, § 3474; Code 
1933, § 105-204.) 



History of section. — The language of this 
section is derived in part from the decision 
in Western & A.R.R. v. Young, 83 Ga. 512, 10 
S.E. 197 (1889). 

Law reviews. — For article discussing de- 
fenses to action for wrongful death in Geor- 
gia, see 22 Ga. B.J. 459 (I960). 

For comment criticizing Powell v. Hart- 
ford Accident & Indem. Co., 217 Tenn. 503, 



398 S.W.2d 727 (1966), and advocating sub- 
jective determination by jury of minor's ca- 
pacity to exercise due care on the highway, 
see 18 Mercer L. Rev. 518 (1967). For com- 
ment criticizing Hatch v. O'Neill, 231 Ga. 
446, 202 S.E.2d 44 (1973), holding individ- 
ual under age of criminal responsibility not 
civilly liable for willful torts, see 26 Mercer L. 
Rev. 367 (1974). 



Analysis 



JUDICIAL DECISIONS 



General Consideration 

Contributory Negligence 

Duty of Care Owed to Children 

Jury Instructions 

Child's Negligence as Jury Question 



General Consideration 

Conduct of child of tender years is not to 
be judged by same rule that governs actions 



of adult. Huckabee v. Grace, 48 Ga. App. 
621, 173 S.E. 744 (1934). 

No invariable rule. — The care and dili- 
gence required of an infant of tender years is 



30 



51-1-5 



GENERAL PROVISIONS 



51-1-5 



not fixed by any invariable rule with refer- 
ence to the age of the infant or otherwise. It 
depends upon the capacity of the particular 
infant, taking into consideration his age as 
well as other matters. McLarty v. Southern 
Ry., 127 Ga. 161, 56 S.E. 297 (1906); 
MacDougald Constr. Co. v. Mewborn, 34 Ga. 
App. 333, 129 S.E. 917 (1925). 

Due care in child of tender years is such 
care as his capacity, mental and physical, fits 
him for exercising in actual circumstances of 
the occasion and situation under investiga- 
tion. Rogers v. McKinley, 48 Ga. App. 262, 

172 S.E. 662 (1934); Huckabee v. Grace, 48 
Ga. App. 621, 173 S.E. 744 (1934). 

A child of tender years may not be under 
the duty of exercising ordinary care as de- 
fined in § 51-1-2, but he is charged under 
this section with the duty of exercising such 
care as his capacity, mental and physical, fits 
him for exercising, this capacity to be judged 
by the jury from the circumstances sur- 
rounding the transaction under investiga- 
tion, and the child's conduct in reference 
thereto. Huckabee v. Grace, 48 Ga. App. 621, 

173 S.E. 744 (1934). 

Neither average child of his own age, nor 
prudent man, is standard by which to mea- 
sure his diligence with legal exactness. Clary 
Maytag Co. v. Rhyne, 41 Ga. App. 72, 151 
S.E. 686 (1930); Jackson v. Young, 125 Ga. 
App. 342, 187 S.E.2d 564 (1972). 

Section speaks in terms of particular 
youthful plaintiff in particularized circum- 
stances. The child, unlike his adult counter- 
part, does not undergo the metamorphosis 
into the fictionalized character of the ordi- 
nary prudent youth. Williams v. United 
States, 379 F.2d 719 (5th Cir. 1967). 

This section means such care as the capac- 
ity of the particular child enables him to use 
naturally and reasonably, and not the care 
ordinarily exercised and which should rea- 
sonably be expected from a child of his years 
and experience, under the circumstances in 
which he is placed. Ragan v. Goddard, 43 Ga. 
App. 599, 159 S.E. 743 (1931). 

Merely because a petition alleged in effect 
that a child was intelligent and unusually 
well developed, the degree of care which he 
was required to exercise was still to be mea- 
sured by his own particular capacity, in the 
light of the actual circumstances of the oc- 
casion and situation under investigation. 
Ragan v. Goddard, 43 Ga. App. 599, 159 S.E. 
743 (1931). 



For child to be negligent, he must be 
shown to have appreciation of risk involved, 

and a general showing that the child was 
aware of the factual situation is not suffi- 
cient. It must be shown that the child was 
aware of and appreciated the danger of the 
situation. Williams v. United States, 379 F.2d 
719 (5th Cir. 1967). 

Due care under age 14. — Infants under 
14 years of age are chargeable with contrib- 
utory negligence resulting from a want of 
such care as their mental and physical capac- 
ity fits them for exercising, and assume the 
risk of those patent, obvious, and known 
dangers which they are able to appreciate 
and avoid. Evans v. Mills, 119 Ga. 448, 46 S.E. 
674 (1904); MacDougald Constr. Co. v. 
Mewborn, 34 Ga. App. 333, 129 S.E. 917. 

A child of tender years, under 14 years of 
age, is not bound to exercise due care as an 
adult (exacted of every prudent man) but 
according to the child's age and capacity. 
Sturdivant v. Polk, 140 Ga. App. 152, 230 
S.E.2d 115 (1976). 

A child guest 13 years of age, not being so 
young as to be as a matter of law incapable of 
negligence, and not being bound to exercise 
the same measure of ordinary care which is 
exacted of every prudent adult, is neverthe- 
less required under the Code to exercise the 
"due care" of a child of "tender years." 
Eddleman v. Askew, 50 Ga. App. 540, 179 
S.E. 247 (1935). 

There is no presumption of law that child 
between ages of seven and 14 did or did not 
exercise due care, or does or does not have 
sufficient capacity to recognize danger or to 
observe due care. Jackson v. Young, 125 Ga. 
App. 342, 187 S.E.2d 564 (1972). 

A child of four years or younger is conclu- 
sively presumed to be incapable of contrib- 
utory negligence under this section. 
Crawford v. Southern Ry., 106 Ga. 870, 33 
S.E. 826 (1899); City of Atlanta v. Whitley, 24 
Ga. App. 411 ; 101 S.E. 2 (1919); Williams v. 
Jones, 26 Ga. App. 558, 106 S.E. 616 (1921). 

Due care over age 14. — If 16 year old 
plaintiff had desired to avoid the legal pre- 
sumption that the law treated him as an 
adult, the burden was on him to offer proof 
to rebut the presumption. Sheetz v. Welch, 
89 Ga. App. 749, 81 S.E.2d 319 (1954). 

A boy 15 years of age, in the absence of 
any evidence of the want of ordinary capac- 
ity in the particular boy, should not be 



31 



51-1-5 



TORTS 



51-1-5 



General Consideration (Cont'd) 

treated as a child of "tender years," but as a 
young person chargeable with such dili- 
gence as might fairly be expected of the class 
and condition to which he belongs. Laseter 
v. Clark, 54 Ga. App. 669, 189 S.E. 265 
(1936). 

Child over 14 years is presumptively 
chargeable with some degree of diligence as 
an adult under same circumstances. 
Muscogee Mfg. Co. v. Butts, 21 Ga. App. 558, 
94 S.E. 821 (1918); Texas Co. v. Hearn, 23 
Ga. App. 408, 98 S.E. 419 (1919); Paulk & 
Fossil v. Lee, 31 Ga. App. 629, 121 S.E. 845 
(1924). 

A young person of the age of 14 or more is 
presumed to be capable of realizing danger, 
and of exercising the necessary forethought 
and caution to avoid it, and is presumptively 
chargeable with diligence for his own safety, 
where the peril is palpable and manifest. 
Laseter v. Clark, 54 Ga. App. 669, 189 S.E. 
265 (1936). 

Regardless of age, if there is no breach of 
legal duty on part of defendant toward that 
person, there can be no legal liability. YMCA 
v. Bailey, 112 Ga. App. 684, 146 S.E.2d 324 
(1965), cert, denied, 385 U.S. 868, 87 S. Ct 
131, 17 L. Ed. 2d 95 (1966). 

Cited in McCombs v. Southern Ry., 39 Ga. 
App. 716, 148 S.E. 407 (1929); Adantic Ice & 
Coal Co. v. Harris, 45 Ga. App. 419, 165 S.E. 
134 (1932); Southern Ry. v. Perkins, 66 Ga. 
App. 66, 17 S.E.2d 95 (1941); Eason v. Crews, 
88 Ga. App. 602, 77 S.E.2d 245 (1953); 
Edwards v. United States, 164 F. Supp. 885 
(M.D. Ga. 1958); Lanier v. O'Bear, 101 Ga. 
App. 667, 115 S.E.2d 110 (1960); Henry 
Grady Hotel Corp. v. Watts, 119 Ga. App. 
251, 167 S.E.2d 205 (1969); Perry Bros. 
Transp. Co. v. Rankin, 120 Ga. App. 798, 172 
S.E.2d 154 (1969); Bailey v. Todd, 126 Ga. 
App. 731, 191 S.E.2d 547 (1972); Anderson 
v. Happ, 136 Ga. App. 839, 222 S.E.2d 607 
(1975); Wallace v. Ener, 521 F.2d 215 (5th 
Cir. 1975); Lequire v. Youmans, 147 Ga. App. 
174, 248 S.E.2d 235 (1978); Walt Disney 
Prods., Inc. v. Shannon, 247 Ga. 402, 276 
S.E.2d 580 (1981); Blackwell v. Cantrell, 169 
Ga. App. 795, 315 S.E.2d 29 (1984); Sorrells 
v. Miller, 218 Ga. App. 641, 462 S.E.2d 793 
(1995). 



Contributory Negligence 

General rules on contributory negligence 
not necessarily applicable to children. — 
Although it is the general rule with regard to 
an adult that to entide him to recover dam- 
ages for an injury resulting from the negli- 
gence of another he must be himself in the 
exercise of ordinary care, this is not the rule 
with regard to an infant of tender years. 
Huckabee v. Grace, 48 Ga. App. 621, 173 S.E. 
744 (1934). 

Assumption of risk not applicable to 
child's conduct. — If, because of his age, a 
child did not understand the risk involved in 
his conduct, his failure to exercise ordinary 
care to discover the danger is not properly a 
matter of assumption of risk, but of the 
defense of contributory negligence. 
Hawkins ex rel. Pearson v. Small World Day 
Care Ctr., Inc., 234 Ga. App. 843, 508 S.E.2d 
200 (1998). 

Children may be negligent if violating 
standards applicable to them. — There is no 
liability if the injured person, by the exercise 
of that degree of care which the law required 
of him, could have avoided the conse- 
quences of any negligence of which the 
defendant may have been guilty. YMCA v. 
Bailey, 112 Ga. App. 684, 146 S.E.2d 324 
(1965), cert denied, 385 U.S. 868, 87 S. Ct. 
131, 17 L. Ed. 2d 95 (1966). 

Whether or not a boy 15 years of age, who 
was riding on a truck driven by one whose 
negligence was not imputable to him, should 
be held presumptively liable to the same 
standard of care as would control an ordi- 
nary adult or an ordinarily experienced 
adult driver, he could not even in that event 
be held liable as a matter of law for any 
contributory negligence on his part, unless 
his peril was palpable and manifest and he 
failed to exercise that care which would have 
been exercised under similar circumstances 
by an ordinarily prudent adult. Laseter v. 
Clark, 54 Ga. App. 669, 189 S.E. 265 (1936). 

Question of capacity or lack of capacity to 
be contributorily negligent in case of chil- 
dren, even very young children, is subjective 
one which necessarily depends in each situ- 
ation upon the particular child's mental and 
physical capacity. Brewer v. Gittings, 102 Ga. 
App. 367, 116 S.E.2d 500 (1960); Jackson v. 
Young, 125 Ga. App. 342, 187 S.E.2d 564 



32 



51-1-5 



GENERAL PROVISIONS 



51-1-5 



(1972); Ashbaugh v. Trotter, 237 Ga. 46, 226 
S.E.2d 736 (1976). 

Proof of child's negligence admissible to 
prove vicarious liability. — Negligence may 
be alleged to show the injurious conduct of a 
child in support of an action against another 
who bears responsibility on account of the 
conduct of the child, even if the child cannot 
be charged with contributory negligence to 
defeat or diminish recovery in an action in 
his behalf, or with negligence to support an 
action directed against him. Miles v. 
Harrison, 115 Ga. App. 143, 154 S.E.2d 377, 
rev'd on other grounds, 223 Ga. 352, 155 
S.E.2d6 (1967). 

Duty of Care Owed to Children 

Children of tender years are entitled to 
degree of care proportioned to their ability 
to foresee and avoid perils which may be 
encountered. Augusta Amusements, Inc. v. 
Powell, 93 Ga. App. 752, 92 S.E.2d 720 
(1956). 

Child's ability to appreciate danger gener- 
ally not presumed. As to a boy seven years 
old, no presumption arises that he will ap- 
preciate danger and will act with the discre- 
tion of an adult in going upon a railroad 
track and in getting out of the way of an 
approaching train, and persons in charge of 
such a train are not authorized to act on 
such a presumption. Simmons v. Atlanta & 
W.P.R.R., 46 Ga. App. 93, 166 S.E. 666 
(1932). 

Nor does a child servant necessarily as- 
sume risk. — If there are latent defects in 
machinery or dangers incident to an em- 
ployment, unknown to the servant, of which 
the master knows or ought to know, he must 
give the servant warning in respect thereto, 
and this is especially true where the servant 
is a child of tender years, since, while it is the 
general rule that a servant assumes the ordi- 
nary risks of his employment and is bound to 
exercise his own skill and diligence to pro- 
tect himself, a child of tender years, under 
the age of 14, assumes only such ordinary 
risks of his employment as he is capable of 
appreciating and understanding, and a mas- 
ter who, by himself or through an authorized 
agent, directs such a child to do an act 
which, if performed according to the means 
and method provided by the master, would 
be attended with danger, owes the duty of 
warning him of the dangers incident to its 



performance, and in doing so must take into 
consideration the child's incapacity to ap- 
preciate and understand danger, and in such 
a case the duty incumbent upon the child is 
to exercise due care according to his age and 
his own actual capacity, rather than the 
ordinary care exacted by the general rule of 
every prudent man. Moore v. Ross, 41 Ga. 
App. 509, 153 S.E. 575 (1930). 

Duty of schoolbus driver. — It is the duty 
of a schoolbus driver to deposit a passenger 
in a place of safety and, in the case of an 
infant, whether or not a place of deposit is a 
place of safety cannot be determined solely 
by whether or not one would be safe if he 
remained on that spot. Davidson v. Home, 
86 Ga. App. 220, 71 S.E.2d 464 (1952). 

There was no duty on the part of a 
schoolbus driver to assist a nine year old 
child in crossing the highway safely. 
Davidson v. Home, 86 Ga. App. 220, 71 
S.E.2d 464 (1952). 

Jury Instructions 

Consistency of instructions. — Where, 
immediately after defining negligence in a 
proper manner and stating that the plaintiff 
and the defendant were both required to 
exercise ordinary diligence, the court imme- 
diately went on to use the language of this 
section, construing this portion of the 
charge as a whole, it was not erroneous and 
could not have misled the jury. Brewer v. 
Gittings, 102 Ga. App. 367, 116 S.E.2d 500 
(1960). 

Explanation of due care under this section 
unnecessary where plaintiff not negligent as 
matter of law. — Where the court charged 
the jury that the plaintiff as a matter of law 
could not be charged with any negligence, it 
was not error, in the absence of a special 
request, for the court to fail to charge more 
elaborately, as laid down in this section, the 
rule as to care attributable to a child of 
tender years, or in failing to charge that the 
plaintiff, a child of four years, was a child of 
tender years, and was incapable of being 
guilty of contributory negligence. Tharpe v. 
Cudahy Packing Co., 60 Ga. App. 449, 4 
S.E.2d49 (1939). 

Instruction on standard of care sufficient 
as instruction on negligence. — Having in- 
structed the jury as to the standard of care 
expected of a child, it is unnecessary for the 
court to repeat such instructions in each 



33 



51-1-5 



TORTS 



51-1-5 



Jury Instructions (Cont'd) 

instance when referring to the negligence of 
the child. Shirey v. Woods, 1 18 Ga. App. 851, 
165S.E.2d891 (1968). 

Tender years instruction improper in acci- 
dental shooting case. — In case in which 
15-year-old defendant shot plaintiff's 
14-year-old son while attempting to unload 
his gun during a hunting trip, trial court 
committed reversible error in giving child of 
tender years instruction absent evidence ei- 
ther boy lacked the capacity of a person his 
age. Townsend v. Moore, 165 Ga. App. 606, 
302S.E.2d398 (1983). 

Child's Negligence as Jury Question 

Question of infant's alleged negligence is 

one for jury under appropriate instructions 
from trial court. Canton Cotton Mills v. 
Edwards, 120 Ga. 447, 47 S.E. 937 (1904); 
Beck v. Standard Cotton Mills, 1 Ga. App. 
278, 57 S.E. 998 (1907); Savannah Lighting 
Co. v. Harrison, 20 Ga. App. 8, 92 S.E. 772 
(1917); Western & A.R.R. v. Reed, 35 Ga. 
App. 538, 134 S.E. 134, cert, denied, 35 Ga. 
App. 808 (1926); Smith v. Kleinberg, 49 Ga. 
App. 194, 174 S.E. 731 (1934); Etheridge v. 
Hooper, 104 Ga. App. 227, 121 S.E.2d 323 
(1961); Ashbaugh v. Trotter, 237 Ga. 46, 226 
S.E.2d 736 (1976); Davis v. Webb, 149 Ga. 
App. 144, 253 S.E.2d 820 (1979). 

Question of contributory negligence of 
child of tender years is one especially for 
jury. Davis v. General Gas Corp., 106 Ga. 
App. 317, 126 S.E.2d 820 (1962). 

Child under six years of age. — The trial 
court did not err in failing to charge the jury 
upon request that a child under six years old 
is presumed incapable of contributory neg- 
ligence. Clanton v. Gwinnett County Sch. 
Dist., 219 Ga. App. 343, 464 S.E.2d 918 
(1995). 

The question of an 11-year-old child's 
contributory negligence is for the jury. Fraley 
ex rel. Fraley v. Lake Winnepesaukah, Inc., 
631 F. Supp. 160 (N.D. Ga. 1986). 

Whether child under 14 is capable of 
negligence, except in plain and unmistak- 
able cases, is question for determination by 
jury. Williams v. United States, 352 F.2d 477 
(5th Cir. 1965), later appeal, 379 F.2d 719 
(5th Cir. 1967). 

Capacity of child, age seven or above, to 
appreciate danger and exercise some degree 



of care, is matter of fact for jury determina- 
tion. Augusta Amusements, Inc. v. Powell, 93 
Ga. App. 752, 92 S.E.2d 720 (1956); Brewer 
v. Gittings, 102 Ga. App. 367, 116 S.E.2d 500 
(1960); Miles v. Harrison, 115 Ga. App. 143, 
154 S.E.2d 377, rev'd on other grounds, 223 
Ga. 352, 155 S.E.2d 6 (1967); Shirey v. 
Woods, 118 Ga. App. 851, 165 S.E.2d 891 
(1968). 

Jury must find child had requisite capacity. 
— Since the question of capacity is an indi- 
vidual one in each of the cases involving 
children between seven and 14 years of age, 
the jury must first find that the particular 
child had the capacity required and then 
must decide whether or not the child exer- 
cised it. Brewer v. Gittings, 102 Ga. App. 367, 
116 S.E.2d 500 (1960); Jackson v. Young, 125 
Ga. App. 342, 187 S.E.2d 564 (1972). 

Whether care exercised according to ca- 
pacity. — The jury is to determine what were 
the circumstances and facts of the matter 
under investigation and then determine the 
child's age and mental and physical capacity 
at the time of the injury and from this then 
determine what care she was capable of 
exercising and whether or not she exercised 
that particular care which would be the due 
care expected of her by law. Clary Maytag 
Co. v. Rhyne, 41 Ga. App. 72, 151 S.E. 686 
(1930); Davis v. Webb, 149 Ga. App. 144, 253 
S.E.2d820 (1979). 

Negligence of child guest. — In automo- 
bile collision cases, whether a child guest of 
tender years exercised the measure of due 
care required by the Code under the actual 
circumstances of the occasion and situation 
is a question peculiarly for a jury, and not a 
question of law to be decided by the court, 
except in clear and palpable cases. 
Eddleman v. Askew, 50 Ga. App. 540, 179 
S.E. 247 (1935), overruled in part on other 
grounds, Chadwick v. Miller, 169 Ga. App. 
338, 312 S.E.2d 835 (1983). 

Jury may apply child's standard to older 
minors where appropriate. — While the 
standard of ordinary care of a child of 14 or 
15 is presumptively that of an adult, the 
youth and inexperience of a child of this age 
are to be considered and the matter ordi- 
narily left as a question of fact for the jury 
rather than as a matter of law for the court. 
Lassiter v. Poss, 85 Ga. App. 785, 70 S.E.2d 
411 (1952). 



34 



51-1-6 



GENERAL PROVISIONS 
RESEARCH REFERENCES 



51-1-6 



Am. Jut. 2d. — 57A Am. Jur. 2d, Negli- 
gence, §§ 193, 204 et seq. 

C.J.S. — 65 C.J.S., Negligence, §§ 12, 63 
et seq. 

ALR. — Automobiles: liability of parent 
for injury to child's guest by negligent oper- 
ation of car, 2 ALR 900; 88 ALR 590. 

Intervening act of child as affecting ques- 
tion of proximate cause of damage to the 
person or property of third person by fire or 
explosion, 8 ALR 1250. 

Duty of carrier to guard young children 
against danger of falling from car, 28 ALR 
1035. 

Duty to guard against danger to children 
by electric wires, 49 ALR 1053; 100 ALR 621. 

Liability for injury to child guest on one's 
premises, 60 ALR 108. 

Negligence or contributory negligence of 
parent in intrusting child to custody of an- 
other child, 123 ALR 147. 

Liability for injury to child by automobile 
left unattended in street or highway, 140 
ALR 538. 

Child's violation of statute or ordinance as 
affecting question of his negligence or con- 
tributory negligence, 174 ALR 1170. 

Liability for injury by explosive or the like 
found by, or left accessible to, a child, 10 
ALR2d 22. 

Railroad's duty to children walking longi- 
tudinally along railroad tracks or right of 
way, 31 ALR2d 789. 

Liability to patron of scenic railway, roller 
coaster, or miniature railway, 66 ALR2d 689. 

Standard for judging conduct of minor 
motorist charged with gross negligence, 
recklessness, willful or wanton misconduct, 
or the like, under guest statute or similar 
common-law rule, 97 ALR2d 861. 

Age of minor operator of automobile or 
other motor-powered vehicle or craft as af- 
fecting his primary or contributory negli- 
gence, 97 ALR2d 872. 



Contributory negligence of child injured 
while climbing over or through railroad 
train blocking crossing, 11 ALR3d 1168. 

Age and mentality of child as affecting 
application of attractive nuisance doctrine, 
16 ALR3d 25. 

Duty of possessor of land to warn child 
licensees of danger, 26 ALR3d 317. 

Railroad's liability for injury to or death of 
child on moving train other than as paying 
or proper passenger, 35 ALR3d 9. 

Weapons: application of adult standard of 
care to infant handling firearms, 47 ALR3d 
620. 

Liability for injury or death in shooting 
contest or target practice, 49 ALR3d 762. 

Excessiveness and adequacy of damages 
for personal injuries resulting in death of 
minor, 49 ALR3d 934. 

Lawn mowing by minors as violation of 
child labor statutes, 56 ALR3d 1166. 

Infant as guest within automobile guest 
statutes, 66ALR3d601. 

Landlord's liability to tenant's child for 
personal injuries resulting from defects in 
premises, as affected by tenant's negligence 
with respect to supervision of child, 82 
ALR3d 1079. 

Liability of youth camp, its agents or em- 
ployees, or of scouting leader or organiza- 
tion, for injury to child participant in pro- 
gram, 88 ALR3d 1236. 

Liability for injury to or death of child 
from electric wire encountered while climb- 
ing tree, 91 ALR3d 616. 

Products liability: toys and games, 95 
ALR3d 390. 

Modern trends as to tort liability of child 
of tender years, 27 ALR4th 15. 

Modern trends as to contributory negli- 
gence of children, 32 ALR4th 56. 

Excessiveness and adequacy of damages 
for personal injuries resulting in death of 
minor, 49 ALR4th 1076. 



51-1-6. Recovery of damages upon breach of legal duty. 

When the law requires a person to perform an act for the benefit of 
another or to refrain from doing an act which may injure another, although 
no cause of action is given in express terms, the injured party may recover 
for the breach of such legal duty if he suffers damage thereby. (Orig. Code 



35 



51-1-6 



TORTS 



51-1-6 



1863, § 2896; Code 1868, § 2902; Code 1873, § 2953; Code 1882, § 2953; 
Civil Code 1895, § 3809; Civil Code 1910, § 4405; Code 1933, § 105-103.) 



Cross references. — Liability for acts of 
intoxicated persons, § 51-1-40. 

Law reviews. — For comment on Buttrum 
v. Buttrum, 98 Ga. App. 226, 105 S.E.2d 510 
(1958), holding that an unemancipated mi- 
nor child may maintain an action in tort 
against a parent for personal injuries pro- 
vided that it is a willful and malicious act so 
cruel as to constitute forfeiture of parental 
authority, see 21 Ga. B.J. 559 (1959). For 



comment on Cox v. Dejarnette, 104 Ga. App. 
664, 123 S.E.2d 16 (1961), allowing recovery 
in tort from the liability insurance policy of a 
charity, see 14 Mercer L. Rev. 463 (1963). 
For comment on Williams v. Hospital Auth., 
1 19 Ga. App. 626, 168 S.E.2d 336 (1969), see 
6 Ga. St. BJ. 209 (1969). For comment on 
Parker v. Vaughan, 124 Ga. App. 300, 183 
S.E.2d 605 (1971), see 8 Ga. St. BJ. 244 
(1971). 



JUDICIAL DECISIONS 



Analysis 



General Consideration 
Applicability to Specific Cases 

1 . Duty of Care Imposed 

2. Breach of Legal Duty 
Pleading and Practice 



General Consideration 

Section does not create a cause of action; 

it simply authorizes the recovery of damages 
for breach of a legal duty and did not apply 
in an action brought under § 36-33-4. City of 
Buford v. Ward, 212 Ga. App. 752, 443 S.E.2d 
279 (1994). 

This section is designed to provide a cause 
of action for the breach of a legal duty where 
one does not otherwise exist, as indicated by 
the plain language of the statute that it 
operates where "no cause of action is given 
in express terms." Cruet v. Emory Univ., 85 
F. Supp. 2d 1353 (N.D. Ga. 2000). 

Right to recover even nominal damages. 
— Where there is fraud or breach of a legal 
or private duty accompanied by any damage, 
the law gives a right to recover damages, 
even only nominal damages, as compensa- 
tion. Holmes v. Drucker, 201 Ga. App. 687, 
411 S.E.2d728 (1991). 

The commission or omission of act by 
defendant, and damage to plaintiff in con- 
sequence thereof, must unite to give him 
good cause of action. No one of these facts 
by itself is a cause of action against the 
defendant. Pinholster v. McGinnis, 155 Ga. 
App. 589, 271 S.E.2d 722 (1980). 

Liability in every tort case rests upon 
breach of duty and resultant injury or dam- 
age to him to whom duty is owed. Cooper v. 



Anderson, 96 Ga. App. 800, 101 S.E.2d 770 
(1957), aff'd, 214 Ga. 164, 104 S.E.2d 90 
(1958). 

Regardless of age or capacity of injured 
person, if there is no breach of legal duty on 
part of defendant toward such person, there 
can be no legal liability. Augusta Amuse- 
ments, Inc. v. Powell, 93 Ga. App. 752, 92 
S.E.2d720 (1956). 

Duty imposed by law means either duty 
imposed by a valid statutory enactment of 
the legislature or duty imposed by recog- 
nized common-law principledeclared in the 
reported decisions of the appellate courts of 
the state or jurisdiction involved. Mauldin v. 
Sheffer, 113 Ga. App. 874, 150 S.E.2d 150 
(1966). 

Occupational Safety and Health Act regu- 
lations by definition constitute a duty under 
the law and breach of those regulations is a 
violation of law. They should be admissible 
not merely as "standards" of performance, 
but as evidence of legal duty, violation of 
which may give a cause of action under this 
section, though, in this case, the trial court 
ruled judiciously in excluding evidence of 
OSHA regulations that was cumulative to the 
ordinary care evidence that was allowed. 
Cardin v. Telfair Acres of Lowndes County, 
Inc., 195 Ga. App. 449, 393 S.E.2d 731 
(1990). 



36 



51-1-6 



GENERAL PROVISIONS 



51-1-6 



OSHA regulations — Occupational Safety 
and Health Administration (OSHA) regula- 
tions are admissible not merely as "stan- 
dards" of performance, but as evidence of 
legal duty, violation of which may give a 
cause of action under this Code section. But 
applicability in a particular case and rele- 
vancy, depend on the relationship of the 
parties. Dupree v. Keller Indus., Inc., 199 Ga. 
App. 138, 404 S.E.2d 291, cert, denied, 199 
Ga. App. 905, 404 S.E.2d 291 (1991). 

Occupational Safety and Health Adminis- 
tration (OSHA) regulates obligations be- 
tween an employer and its employees; thus, 
evidence of a violation of an OSHA regula- 
tion by a contractor hired by city water and 
sewer department was not pertinent in a 
negligence action against the contractor by a 
city employee. Brantley v. Custom Sprinkler 
Sys., 218 Ga. App. 431, 461 S.E.2d 592 
(1995). 

Violated statute should have been in- 
tended to benefit plaintiff. — This Code 
section provides a cause of action for viola- 
tions of statutes that are intended to benefit 
the party bringing the suit. Pelletier v. 
Zweifel, 921 F.2d 1465 (11th Cir.), cert, 
denied, 502 U.S. 855, 112 S. Ct 167, 116 L. 
Ed. 2d 130 (1991). 

Plaintiff, staff member at defendant's 
school, was not within class of protected 
persons contemplated by the child abuse 
reporting statute (§ 19-7-5), and his claim 
for damages under this Code section could 
not survive summary judgment. Odem v. 
Pace Academy, 235 Ga. App. 648, 510 S.E.2d 
326 (1998). 

Same duty may arise from different basic 
obligations imposed by law upon several 
defendants. Cooper v. Anderson, 96 Ga. 
App. 800, 101 S.E.2d 770 (1957), aff'd, 214 
Ga. 164, 104 S.E.2d 90 (1958). 

In determining whether a rule illustrates 
duty of defendant, its scope will not, by 
implication, be extended beyond its clear 
and obvious meaning. McGinnis v. Shaw, 46 
Ga. App. 248, 167 S.E. 533 (1933). 

It is never to be presumed that a person 
will commit a wrongful act or will act negli- 
gently or improperly. Porter v. Patterson, 107 
Ga. App. 64, 129 S.E.2d 70 (1962). 

Rather performance of duty presumed 
unless contrary shown. — Negligence or 
breach of duty is not to be anticipated, but 
until the contrary is shown it is to be pre- 



sumed that every man obeys the mandates of 
the law and performs all of his social and 
official duties. Porter v. Patterson, 107 Ga. 
App. 64, 129 S.E.2d 70 (1962). 

Present action based on future promise 
good where false representations made at 
time of promise. — Where petition discloses 
a promise of something to occur in the 
future the element of futurity is not fatal to a 
cause of action under tins section when in 
connection with a promise a false represen- 
tation has been made. Bishop v. Greene, 62 
Ga. App. 126, 8 S.E.2d 448 (1940). 

Action may arise from harmful effects 
though act itself is lawful. — Though an act 
may be in itself lawful, yet, if in its effects or 
consequences, it is productive of any injury 
to another, it subjects the party to this action. 
Carpenter v. Williams, 41 Ga. App. 685, 154 
S.E. 298 (1930). 

Liability does not depend upon anticipat- 
ing particular injury or that a particular 
person would be injured. Aretz v. United 
States, 503 F. Supp. 260 (S.D. Ga. 1977), 
aff'd, 660 F.2d 531 (5th Cir. 1981). 

No duty to warn where knowledge among 
parties nearly equal. — Where knowledge 
among the parties is nearly, if not precisely, 
equal, and a warning from the defendants 
would have been met with the response "I 
know," there arises no duty to warn of a 
potential danger. McNish v. Gilbert, 184 Ga. 
App. 234, 361 S.E.2d 231 (1987). 

Before negligence can be actionable it 
must be proximate cause of or part of 
proximate cause of injury received. Aretz v. 
United States, 503 F. Supp. 260 (S.D. Ga. 
1977), aff'd, 660 F.2d 531 (5th Cir. 1981). 

Proximate cause is not last act or cause or 
nearest act to the injury; it is negligent act 
that actively aids in producing the injury as 
direct and existing cause. Aretz v. United 
States, 503 F. Supp. 260 (S.D. Ga. 1977), 
aff'd, 660 F.2d 531 (5th Cir. 1981). 

Acts of third party may break causal link. 
— The general rule is that where there has 
intervened between the defendant's negli- 
gence and the injury an independent, illegal 
act of a third person producing the injury, 
and without which it would not have oc- 
curred, such independent criminal act 
should be treated as the proximate cause, 
insulating and excluding the negligence of 
the defendant. The rule is inapplicable if the 
original wrongdoer had reasonable grounds 



37 



51-1-6 



TORTS 



51-1-6 



General Consideration (Cont'd) 

for apprehending that such criminal act 
would be committed. Decker v. Gibson 
Prods. Co., 505 F. Supp. 34 (M.D. Ga. 1980), 
rev'd on other grounds, 679 F.2d 212 (11th 
Cir. 1982). 

Causal connection between original negli- 
gence and injury not broken by intervening 
act of third person where same reasonably 
foreseen by original wrongdoer. Aretz v. 
United States, 503 F. Supp. 260 (S.D. Ga. 
1977), aff'd, 660 F.2d 531 (5th Cir. 1981). 

Proof that plaintiff's impaired condition 
was not proximate result of defendant's 
negligence demands a verdict in favor of 
latter. Pinholster v. McGinnis, 155 Ga. App. 
589,271 S.E.2d722 (1980). 

Action based upon negligence is not cog- 
nizable under Georgia law where the alleged 
damages are economic. A.J. Kellos Constr. 
Co. v. Balboa Ins. Co., 495 F. Supp. 408 (S.D. 
Ga. 1980). 

Violation of § 9-2-5 (a), prohibiting prose- 
cution of two simultaneous actions for the 
same cause against the same party, would not 
give rise to a cause of action for damages, 
since the statute does not impose upon 
plaintiffs a substantive legal duty but rather 
is simply a procedural matter. Hose v. Jason 
Property Mgt. Co., 178 Ga. App. 661, 344 
S.E.2d483 (1986). 

No damages for breach of oral contract 
for sale of realty. — Damages for the failure 
of a party to carry out the purported terms 
of an oral contract for the sale of realty were 
not authorized. Zappa v. Basden, 188 Ga. 
App. 472, 373 S.E.2d 246, cert, denied, 188 
Ga. App. 913, 373 S.E.2d 246 (1988). 

Making of false statements. — No private 
cause of action lies for false statements made 
in judicial proceedings. Pelletier v. Zweifel, 
921 F.2d 1465 (11th Cir.), cert, denied, 502 
U.S. 855, 112 S. Ct. 167, 116 L. Ed. 2d 130 
(1991). 

Code Section 16-10-20, which prohibits 
the making of false statements in any matter 
within the jurisdiction of any department or 
agency of state government or the govern- 
ment of any political subdivision of the state, 
was enacted for the protection of the state 
itself — not private parties, and it does not 
create a civil cause of action. Pelletier v. 
Zweifel, 921 F.2d 1465 (11th Cir.), cert, 
denied, 502 U.S. 855, 112 S. Ct. 167, 116 L. 
Ed. 2d 130 (1991). 



Cited in Henderson v. Nolting First Mtg. 
Corp., 184 Ga. 724, 193 S.E. 347 (1937); 
Donaldson v. Great Atl. & Pac. Tea Co., 186 
Ga. 870, 199 S.E. 213 (1938); Sikes v. Foster, 
74 Ga. App. 350, 39 S.E.2d 585 (1946); 
Hamby v. Edmunds Motor Co., 80 Ga. App. 
209, 55 S.E.2d 743 (1949); Dale Elec. Co. v. 
Thurston, 82 Ga. App. 516, 61 S.E.2d 584 
(1950); Studdard v. Evans, 108 Ga. App. 819, 
135 S.E.2d 60 (1964); Giacalone v. Tuggle, 
141 Ga. App. 123, 232 S.E.2d 589 (1977); 
Oden & Sims Used Cars, Inc. v. Thurman, 
250 Ga. App. 709, 301 S.E.2d 673 (1983); 
Hodges v. Tomberlin, 170 Ga. App. 842, 319 
S.E.2d 11 (1984); Sofet v. Roberts, 185 Ga. 
App. 451, 364 S.E.2d 595 (1987); Marcoux v. 
Fields, 195 Ga. App. 573, 394 S.E.2d 361 
(1990); Jairath v. Dyer, 154 F.3d 1280 (11th 
Cir. 1998); Sakas v. Settle Down Enters., Inc., 
2000 U.S. Dist. LEXIS 3839, 90 F. Supp. 2d 
1267 (N.D. Ga. 2000). 

Applicability to Specific Cases 

1. Duty of Care Imposed 

Common carrier's duty to inspect. — 

While a carrier of passengers is not bound to 
keep up a continuous inspection, or to know 
at every moment the condition of every part 
of its cars, yet inspection of the cars should 
be adequate and sufficient, and should be 
made with such frequency as the liability to 
impairment reasonably requires and as is 
practically possible consistent with the con- 
duct of its business. Leslie v. Georgia Power 
Co., 47 Ga. App. 723, 171 S.E. 395 (1933). 

Common carrier's duty to transport pas- 
sengers. — It is the legal duty of a common 
carrier to receive and transport a person 
who has purchased a ticket over its lines, to 
the destination called for by the ticket, and 
should a carrier, in violation of the duty so 
imposed upon it, illegally expel a passenger 
from its bus and wrongfully refuse to carry 
him to his destination, it would be liable to 
the passenger for damages proximately re- 
sulting therefrom. Daigrepont v. Teche Grey- 
hound Lines, 189 Ga. 601, 7 S.E.2d 174 
(1940). 

Corporation's duty to public. — A corpo- 
ration is the creature of the law, and the 
rights and privileges conferred upon it by 
the state, in theory at least, were granted not 
only for its own private benefit, but also for 
the benefit and good of the public; and in 



38 



51-1-6 



GENERAL PROVISIONS 



5M-6 



accepting them it impliedly, at least, agreed 
to carry out the purposes or objects of its 
creation, and assumed a duty or obligation 
towards the public which it will, under the 
law, be required to discharge. Lawrence v. 
Atlanta Gas Light Co., 49 Ga. App. 444, 176 
S.E. 75 (1934). 

Defendant's duty to assist person whom 
his negligence endangers. — Where the pe- 
titioner was placed in an extremely danger- 
ous situation, from which he could not ex- 
tricate himself, by reason of the negligence 
of the defendant, the defendant owed peti- 
tioner the duty of exercising ordinary care in 
extricating him from the wreckage of his 
automobile. Western & A.R.R. v. Groover, 42 
Ga. App. 200, 155 S.E. 500 (1930). 

Present lessee owes no duty to prospective 
lessee. — A lessee in possession who willfully 
violates his duty to deliver the premises to his 
landlord at the end of his term is not liable 
in tort to a lessee whose possession was to 
commence at that time. Kokomo Rubber Co. 
v. Anderson, 33 Ga. App. 241, 125 S.E. 783 
(1924). 

Manufacturer who bottles beverage for 
public consumption is under legal duty not 
to negligently allow foreign substance which 
is injurious to the human stomach, such as 
bits of broken glass, to be present in a botde 
of the beverage when it is placed on sale. 
Watson v. Augusta Brewing Co., 124 Ga. 121, 
52 S.E. 152, 110 Am. St. R. 157, 1 L.R.A. 
(n.s.) 1178 (1905); Beckham v. Jacobs' Phar- 
macy Co., 25 Ga. App. 592, 103 S.E. 857 
(1920). 

Seller's duty to buyer upon sale of poten- 
tially harmful goods. — In connection with a 
sale of goods having a potentiality of doing 
harm by normal, intended, and 
nonnegligent use, where there is no fidu- 
ciary relationship between the seller and the 
purchaser, and no fraud, it is the duty of the 
seller to warn the purchaser at the time of 
sale and delivery, and a breach occurs at this 
time if there is a failure to warn. Everhart v. 
Rich's, Inc., 229 Ga. 798, 194 S.E.2d 425 
(1972), answer conformed to, 128 Ga. App. 
319, 196S.E.2d475 (1973). 

Servant's duty to third parties. — Defen- 
dant, merely because he was working as a 
section foreman on the railroad, owed no 
individual duty to the public in the matter of 
keeping the right of way free from ignitable 
growth. He did owe a duty to his master to 



properly perform his duties, and if there was 
embraced in such duties the obligation to 
keep the right of way free from ignitable 
growth there would be a liability on his part 
to his master for failure to perform his 
agreement. Knight v. Adantic Coast Line 
R.R., 4F. Supp. 713 (S.D. Ga. 1933), aff'd, 73 
F.2d76 (5th Cir. 1934). 

Hospital's duty to follow bylaws. — Both 
public and private hospitals have a legal duty 
not to abridge or refuse to follow existing 
bylaws concerning staff privileges; radiolo- 
gist could assert a cause of action against 
hospital for failure to follow existing bylaws 
with regard to termination of his staff privi- 
leges. St. Mary's Hosp. v. Radiology Profes- 
sional Corp., 205 Ga. App. 121, 421 S.E.2d 
731, cert, denied, 205 Ga. App. 901, 421 
S.E.2d 731 (1992). 

Duty of officer to assist person injured by 
drunk driver. — A law enforcement officer 
owes a tort duty to a member of the general 
public injured by a drunk driver, when the 
officer allows the noticeably intoxicated 
driver to continue operating the motor vehi- 
cle. Landis v. Rockdale County, 206 Ga. App. 
876, 427 S.E.2d 286 (1993). 

2. Breach of Legal Duty 

Failure to insure property. — Recovery 
has been allowed in this state for failure to 
keep property insured where the defendant 
is shown to be plaintiff's agent. Sutker v. 
Pennsylvania Ins. Co., 115 Ga. App. 648, 155 
S.E.2d694 (1967). 

Absent actionable fraud and deceit, it 
appears setded that there is no liability in 
tort for failure of the defendant insurance 
agent or broker to procure or have renewed 
a policy of insurance where the defendant is 
the insurance company's agent and not the 
plaintiff's agent. Sutker v. Pennsylvania Ins. 
Co., 115 Ga. App. 648, 155 S.E.2d 694 
(1967). 

Hotel owner's failure to inspect and main- 
tain. — Where evidence shows that a large 
number of occupants of a hotel building 
were injured as a result of a fire therein, and 
that the hotel was maintained in a condition 
which was violative of an applicable city 
ordinance which required various safety pre- 
cautions against the hazard of fire, the 
owner, who acquired the hotel while it was 
under a written lease to others for a number 
of years, which lease gave to the lessees the 



39 



51-1-6 



TORTS 



51-1-6 



Applicability to Specific Cases (Cont'd) 
2. Breach of Legal Duty (Cont'd) 

exclusive possession except to authorize and 
require the owner to enter and make repairs 
required by law, would be guilty of negli- 
gence per se and liable for the injuries 
resulting from such negligence. Irwin v. 
Willis, 202 Ga. 463, 43 S.E.2d 691 (1947). 

Insurer's negligent inspection of property. 
— Reliance by either the employee or the 
employer on insurance companies' inspec- 
tions is sufficient to give rise to a cause of 
action in tort for negligent inspection by the 
insurance companies. Huggins v. Aetna Cas. 
& Sur. Co., 245 Ga. 248, 264 S.E.2d 191 
(1980). 

Invasion of privacy. — A violation of the 
right of privacy is a direct invasion of a legal 
right of the individual. It is a tort, and it is 
not necessary that special damages should 
have accrued from its violation in order to 
en tide the aggrieved party to recover. 
McDaniel v. Adanta Coca-Cola Botding Co., 
60 Ga. App. 92, 2 S.E.2d 810 (1939). 

Where there was no agent or servant of 
the defendant actually present in the hospi- 
tal room during the time that it is alleged 
that the plaintiff was holding intimate, per- 
sonal and private conversations, but it is 
admitted by the defendant that it caused a 
receiving set to be installed in her room, and 
what was said and done by the plaintiff was 
listened to and recorded by the defendant's 
agent, at its direction, by means of the 
receiving set and earphones, this conduct 
was as effectively an intrusion upon or an 
invasion of the privacy of the plaintiff as if 
the agent had actually been in the room. 
McDaniel v. Adanta Coca-Cola Botding Co., 
60 Ga. App. 92, 2 S.E.2d 810 (1939). 

In the offense of the invasion of the 
privacy of another, the gravamen or essence 
of the acdon is not publication or commer- 
cialization of the information obtained. 
There is nothing in the decided cases of this 
state, which indicates any such limitation or 
qualification of the right, and a person's 
privacy is invaded even though the informa- 
tion obtained be restricted to the immediate 
transgressor. Publication or commercializa- 
tion may aggravate, but the individual's right 
to privacy is invaded and violated neverthe- 
less in the original act of intrusion. 
McDaniel v. Adanta Coca-Cola Botding Co., 



60 Ga. App. 92, 2 S.E.2d 810 (1939). 

Malicious injury to business of another 
will give right of action to the injured party 
under this section. Southern Ry. v. Cham- 
bers, 126 Ga. 404, 55 S.E. 37, 7 L.R.A. (n.s.) 
926 (1906). 

This state recognizes a cause of action 
where one maliciously and wrongfully, and 
with intent to injure, harms the business of 
another. The essential thing is the intent to 
cause the result. If the actor does not have 
this intent, his conduct does not subject him 
to liability under this rule even if it has the 
unintended effect of deterring the third 
person from dealing with the other. Bodge v. 
Salesworld, Inc., 154 Ga. App. 65, 267 S.E.2d 
505 (1980). 

Manufacturer's liability. — The manufac- 
turer or someone not in privity with the 
consumer or user of its product would incur 
liability if damage is proximately caused by 
its willful or wrongful acts or omissions. 
Koppers Co. v. Parks, 120 Ga. App. 551, 171 
S.E.2d639 (1969). 

A consumer or user of a product may 
recover if through a failure to exercise ordi- 
nary care on the part of a manufacturer or 
someone not in privity with the user the 
product is imperfect, defective, or not as 
represented when placed on the market, 
and damage to the consumer or user is 
proximately caused thereby. Koppers Co. v. 
Parks, 120 Ga. App. 551, 171 S.E.2d 639 
(1969). 

Municipal liability for injuries from defect 
in highway. — A defective structure in a 
highway which causes injury to a person, 
renders the municipality liable for the dam- 
ages incurred. City of Greensboro v. 
McGibbony, 93 Ga. 672, 20 S.E. 37 (1894). 

Refusal to furnish public service. — 
Where a gas company operates a franchise, 
and exercises rights and privileges under the 
laws of the state, it is bound to furnish gas to 
all who apply therefor within its territory 
and agree to its reasonable rules and regu- 
lations, and that a refusal to do so is a tort. 
Lawrence v. Adanta Gas Light Co., 49 Ga. 
App. 444, 176 S.E. 75 (1934). 

Servant, as wrongdoer, is liable individu- 
ally for tort committed within scope of his 
master's business. Giles v. Smith, 80 Ga. App. 
540, 56 S.E.2d 860 (1949). 

Telegraph company's failure to deliver. — 
The loss of contract of employment resulting 



40 



51-1-6 



GENERAL PROVISIONS 



51-1-6 



from failure of telegraph company to send 
message of acceptance gives rise to an action 
under this section. Baldwin v. Western 
Union Tel. Co., 93 Ga. 692, 21 S.E. 212 
(1894). 

Third party beneficiaries. — One who 
undertakes, gratuitously or for consider- 
ation, to render services to another which he 
should recognize as necessary for the protec- 
tion of a third person or his things, is subject 
to liability to the third person for physical 
harm resulting from his failure to exercise 
reasonable care to protect his undertaking if 
(a) his failure to exercise reasonable care 
increases the risk of such harm, or (b) he has 
undertaken to perform a duty owed by the 
other to the third person, or (c) the harm is 
suffered because of reliance of the other or 
the third person upon the undertaking. 
Huggins v. Aetna Cas. & Sur. Co., 245 Ga. 
248, 264S.E.2d 191 (1980). 

Willful violation of law. — A person may 
not willfully and purposely engage in a vio- 
lation of the law and then recover damages 
for injury which might ensue in an attempt 
by lawful authorities to prevent him from 
continuing such a course, when it is not 
claimed that he could have been made to 
desist except by the exercise of force, and it 
is not alleged that the force used was greater 
than was necessary to accomplish its object. 
Kent v. Southern Ry., 52 Ga. App. 731, 184 
S.E. 638 (1936). 

Wrongful discharge of servant. — An ac- 
tion by a servant for a wrongful discharge 
from his employment is in contract, and an 
action in tort will not lie unless the discharge 
was accompanied by wrongful acts amount- 
ing to a trespass. American Oil Co. v. Roper, 
64 Ga. App. 743, 14 S.E.2d 145 (1941); 
Rhine v. Sanders, 100 Ga. App. 68, 110 
S.E.2d 128 (1959). 

Age discrimination. — An at-will employee 
may not sue in tort under this section or 
§ 51-1-8 for wrongful discharge based upon 
age discrimination. Reilly v. Alcan Alumi- 
num Corp., 272 Ga. 279, 528 S.E.2d 238 
(2000). 

Alcohol consumer cannot recover from 
provider for injuries to third person. — A 
consumer of alcohol cannot recover 
damages from the provider of the alcohol 
for injuries caused by the consumer to a 
third person. Sutter v. Hutchings, 254 Ga. 
194, 327S.E.2d 716 (1985). 



Person injured by intoxicated consumer 
can recover. — A person who encourages a 
noticeably intoxicated person under the le- 
gal drinking age to become further intoxi- 
cated and who furnishes to such intoxicated 
person more alcohol, knowing that such 
person will soon be driving a vehicle, is liable 
in tort to a person injured by the negligence 
of such intoxicated driver. Sutter v. 
Hutchings, 254,., Ga. 194, 327 S.E.2d 716 
(1985). 

In a negligence action, the trial court did 
not err in charging the jury that one who 
provides alcoholic beverages to a noticeably 
intoxicated person, knowing that that per- 
son will soon be driving a vehicle, may be 
liable for a third person's injuries caused by 
the negligence of the intoxicated driver, if 
the alcohol was a proximate cause of the 
injuries. Studebaker's of Savannah, Inc. v. 
Tibbs, 195 Ga. App. 142, 392 S.E.2d 908 
(1990). 

Minor served beer at bowling alley. — 
Evidence was insufficient to show that any 
breach of duty by a bowling alley relating to 
alcohol was the proximate cause of the death 
of a passenger in a car driven by a minor who 
had been served beer at the bowling alley, 
where there was no evidence that any em- 
ployee had knowledge that the minor was 
intoxicated or would be driving an automo- 
bile. Kalpa v. Perczak, 658 F. Supp. 235 (N.D. 
Ga. 1987). 

Injury to trade name. — If the right to 
protection of a trade name exists, the in- 
jured party may seek both injunctive relief 
and damages. Diedrich v. Miller & Meier & 
Assocs., 254 Ga. 734, 334 S.E.2d 308 (1985). 

False swearing in execution of affidavit. — 
Plaintiff contractor's allegation that defen- 
dant developer knowingly swore falsely in 
executing affidavits stating that no improve- 
ments or repairs had been made to a 
newly-constructed home, thereby injuring 
plaintiff, set forth a cause of action for 
breach of the legal duty to swear truthfully. 
Peters v. Imperial Cabinet Co., 189 Ga. App. 
337, 375 S.E.2d 635 (1988). 

Insurer's failure to provide coverage in- 
formation. — Insurer's breach of § 33-3-28, 
requiring insurers to provide coverage infor- 
mation, did not create a cause of action and 
the right to seek damages under this section 
and § 51-1-8. Parris v. State Farm Mut. Auto. 
Ins. Co., 229 Ga. App. 522, 494 S.E.2d 244 
(1997). 



41 



51-1-6 



TORTS 



51-1-6 



Pleading and Practice 

Sufficiency of complaint. — Petition alleg- 
ing that defendant company and named 
agents and servants thereof, falsely and 
fraudulently impersonated plaintiff, invaded 
his right of privacy, his right to the exclusive 
use of his own name, represented him as 
betraying confidence and giving secret and 
confidential prices to a competitor of those 
who gave the prices, caused his time and that 
of his employees to be consumed, subjected 
him to embarrassment and chagrin, and 
caused him to be held in contempt and 
ridicule by his business associates, all for the 
express purpose of advancing the interest of 
the company set out a cause of action. 
Goodyear Tire & Rubber Co. v. Vandergriff, 
52 Ga. App. 662, 184 S.E. 452 (1936). 

Where the injuries alleged appear to have 
resulted entirely from fright or shock, unac- 
companied by physical contact, in order to 
set forth a cause of action it is necessary to 
show either that the injuries were the natural 
and proximate result of the fright or shock, 
that this result was or should have been 
foreseen with reasonable certainty by the 
defendant, and that the act was one of such 
gross carelessness, coupled with a knowledge 
of the probably physical results as amount to 
willful disregard of the consequences; or 
that the fright was brought about by the 
deliberate and malicious intention on the 
part of the defendant to injure the plaintiff. 
Towler v. Jackson, 111 Ga. App. 8, 140 S.E.2d 
295 (1965). 

Amendment of complaint. — Original pe- 
tition, when measured by the provisions of 
the principles of law announced in § 51-1-1, 
this section, and § 51-1-11, set out a plaintiff 
and a defendant and a specific cause of 
complaint sufficiently to be amendable, 
since if the petition was defective in any wise, 
it was only in that it omitted to allege suffi- 



ciently facts essential to raise the duty or 
obligation in the cause of action, and the 
trial court erred in holding that there was 
not enough in the original petition to 
amend by. Cannon v. Hood Constr. Co., 91 
Ga. App. 20, 84 S.E.2d 604 (1954). 

Construction with federal law. — Because 
an express cause of action already existed as 
part of a remedial scheme set out by the U.S. 
Congress under the Vocational Rehabilita- 
tion Act (VRA) and the Americans with 
Disabilities Act (ADA), plaintiff may not 
recover under this section for any alleged 
violations of subject legal duties. Cruet v. 
Emory Univ., 85 F. Supp. 2d 1353 (N.D. Ga. 
2000). 

Removal to federal court appropriate. — 
Removal to a federal court of an action 
brought under this section was appropriate 
where plaintiff's claim ultimately hinged on 
the interpretation of federal law under the 
Americans with Disabilities Act. Jairath v. 
Dyer, 961 F. Supp. 277 (N.D. Ga. 1996). 

Pleading violation of statute as negligence 
per se. — The plaintiff may rely upon an act 
or omission as constituting negligence as a 
matter of fact under the circumstances, or 
upon the violation of a statute as amounting 
to negligence per se or as a matter of law; 
furthermore, the facts may be so pleaded as 
to show negligence of both classes in the 
same action. Criswell Baking Co. v. Milligan, 
77 Ga. App. 861, 50 S.E.2d 136 (1948). 

Notice requirement. — Denial of sum- 
mary judgment based on any type of tortious 
interference with a contractual right to ex- 
ercise an option to purchase was in error 
since both the original and the amended 
complaint revealed a lack of compliance 
with the notice requirement regarding any 
alleged tortious interference of contract. 
Bowling v. Gober, 206 Ga. App. 38, 424 
S.E.2d 335 (1992). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 74 Am. Jur. 2d, Torts, § 8 
et seq. 

C.J.S. — 86 C.J.S., Torts, § 8 et seq. 

ALR. — Liability of street railway company 
to passenger struck by a vehicle not subject 
to its control, 1 ALR 953; 12 ALR 1371; 31 
ALR 572; 44 ALR 162. 

Liability for injury to child playing on or 



in proximity to automobile, 1 ALR 1385; 44 
ALR 434. 

Liability of one contracting to make re- 
pairs for damages from improper perfor- 
mance of the work, 1 ALR 1654; 44 ALR 824. 

Liability for damage to other premises 
from fire in building where inflammable 
materials are stored, 5 ALR 1378. 



42 



51-1-6 



GENERAL PROVISIONS 



51-1-6 



Liability of railroad company for interfer- 
ence with fire department while attempting 
to extinguish fire, 5 ALR 1651. 

Violation of statute or ordinance regulat- 
ing movement of vehicles as affecting viola- 
tor's right to recover for negligence,- 12 ALR 
458. 

Violation of statute or ordinance in rela- 
tion to explosives as ground of action in 
favor of one injured in person or proper by 
explosion, 12 ALR 1309. 

Liability for death of, or injury to, one 
seeking to rescue another, 19 ALR 4; 158 
ALR 189; 166 ALR 752. 

Question of proximate cause as affecting 
liability for damages for failure to obtain 
telephone connection, 19 ALR 1419. 

Sense of shame, or other disagreeable 
emotion on part of female, as essential to an 
aggravated or indecent assault, 27 ALR 859. 

Purpose in starting business to injure an- 
other as ground of action by latter, 27 ALR 
1417. 

Liability in damages for inducing the dis- 
charge of employee, 29 ALR 532. 

Liability of one who makes a certificate or 
report, to third person who acts in reliance 
thereon, 34 ALR 67; 68 ALR 375. 

Applicability to civil case of provision of 
penal statute creating a presumption of 
prima facie case, 43 ALR 959. 

Civil rights and liabilities as affected by 
failure to comply with regulations as to reg- 
istration of automobile or motorcycle, or 
licensing of operator, 43 ALR 1153; 54 ALR 
374; 58 ALR 532; 61 ALR 1190; 78 ALR 1028; 
87 ALR 1469; 111 ALR 1258; 163 ALR 1375. 

Liability for damage or injury by contact 
with structure above the surface of the street 
or highway, 46 ALR 943; 49 ALR 993. 

Duty of public utility to notify patron in 
advance of temporary suspension of service, 
52 ALR 1078. 

Liability of one creating dangerous condi- 
tion in street or highway as affected by 
removal of the safeguard by a third person, 
62 ALR 500. 

Liability of carrier for injury to own pas- 
senger on its line through negligence of 
another carrier permitted to use its tracks, 
74 ALR 1178. 

Marital or parental relation between plain- 
tiff and member of partnership as affecting 
right to maintain action in tort against part- 
nership or partners, 81 ALR 1106; 101 ALR 
1231. 



Liability for leaving contract forms acces- 
sible to stranger who, by forgery, gives such 
forms apparent authenticity as completed 
contracts, 85 ALR 83. 

Civil liability of bank officer or director 
permitting deposit after insolvency of bank, 
87 ALR 1402. 

Increase in insurance rates or loss of op- 
portunity to obtain insurance in conse- 
quence of another's tort as ground of liabil- 
ity, 92 ALR 1205. 

Liability of municipality for injury or dam- 
age by automobile colliding with temporary 
obstruction in connection with alteration or 
repair of street, 100 ALR 1386. 

Loss or theft of passenger's ticket or other 
token of right to transportation as affecting 
rights and duties of carrier and passenger, 
127 ALR 222. 

Liability for injury to child by automobile 
left unattended in street or highway, 140 
ALR 538. 

Civil and criminal liability of soldiers, sail- 
ors, and militiamen, 143 ALR 1530. 

Unauthorized prosecution of suit in name 
of another as ground of action in tort, 146 
ALR 1125. 

Rights and remedies as between originator 
of uncopyrighted advertising plan or slogan, 
or his assignee, and another who uses or 
infringes the same, 157 ALR 1436. 

Liability for injury as affected by interfer- 
ence by outside agency with object, other 
than automobile, abandoned or temporarily 
left in public street or park, 158 ALR 880. 

Liability of irrigation district for damages, 
160 ALR 1165. 

Customary or statutory signal from train 
as measure of railroad's duty as to warning at 
highway crossing, 5 ALR2d 112. 

Breach of assumed duty to inspect prop- 
erty as ground of liability for damage or 
injury to third person, 6 ALR2d 284. 

Liability of publisher for mistake in adver- 
tisement, 10ALR2d686. 

Duty and liability of carrier to intoxicated 
passenger while en route, 17 ALR2d 1085. 

Liability of parent or person in loco 
parentis for personal tort against minor 
child, 19 ALR2d 423; 41 ALR3d 904. 

Liability for injury to property occasioned 
by oil, water, or the like flowing from well, 19 
ALR2d 1025. 

Liability of seller of firearm, explosive, or 
highly inflammable substance to child, 20 



43 



51-1-6 



TORTS 



51-1-6 



ALR2d 119; 75 ALR3d 825; 95 ALR3d 390; 4 
ALR4th 331. 

Liability of gas company for injury or 
damage due to defects in service lines on 
consumer's premises, 26 ALR2d 136. 

Seller's or manufacturer's liability for in- 
juries as affected by buyer's or user's allergy 
or unusual susceptibility to injury from arti- 
cle, 26 ALR2d 963. 

Shipper's liability to consignee or his em- 
ployee injured while unloading car because 
of improper loading, 35 ALR2d 609. 

Liability of filling station operator, 
garageman, or the like, in connection with 
servicing vehicle with lubricants or fuel, 38 
ALR2d 1453. 

Duty of landowner to erect fence or other 
device to deter trespassing children from 
entering third person's property on which 
dangerous condition exists, 39 ALR2d 1452. 

Liability of architect or engineer for im- 
proper issuance of certificate, 43 ALR2d 
1227. 

Liability for injury or damage resulting 
from fire started by use of blowtorch, 49 
ALR2d 368. 

Liability of public accountant, 54 ALR2d 
324; 46 ALR3d 979. 

Right to damages for exclusion from 
membership in social or fraternal organiza- 
tion, 59 ALR2d 1290. 

Duty and liability of vehicle drivers within 
parking lot, 62 ALR2d 288. 

Liability and suability, in negligence ac- 
tion, of state highway, toll road, or turnpike 
authority, 62 ALR2d 1222. 

Liability of owner or operator to adult 
trespasser in or on motor vehicle or equip- 
ment, 65 ALR2d 798. 

Liability of one drawing an invalid will, 65 
ALR2d 1363. 

Liability to patron of scenic railway, roller 
coaster, or miniature railway, 66 ALR2d 689. 

Liability of person permitting child to 
have gun, or leaving gun accessible to child, 
for injury inflicted by the latter, 68 ALR2d 
782. 

Amusements: liability for injury from slide 
or chute, 69 ALR2d 1067. 

Liability for injury or damage from escap- 
ing refrigerant, 74 ALR2d 894. 

Air carrier's liability for injury to passen- 
ger from changes in air pressure, 75 ALR2d 
848. 

Liability of taxicab carrier to passenger 



injured while boarding vehicle, 75 ALR2d 
988. 

Soldiers' and Sailors' Civil Relief Act of 
1940, as amended, as affecting negligence 
actions, 75 ALR2d 1062. 

Liability of manufacturer or seller for in- 
jury caused by domestic or industrial soaps, 
detergents, cleansers, polishes, and the like, 
79 ALR2d 482. 

Liability for property damage caused by 
vibrations, or the like, without blasting or 
explosion, 79 ALR2d 966. 

Railroad's liability for crossing collision as 
affected by fact that train or engine was 
backing or engine was pushing train, 85 
ALR2d 267. 

Modern status of rule requiring actual 
knowledge of latent defect in leased pre- 
mises as prerequisite to landlord's liability to 
tenant injured thereby, 88 ALR2d 586. 

Liability of owner or operator of theater 
or other place of amusement to patron 
injured by condition of or defect in lavatory, 
restroom, or toilet facilities, 88 ALR2d 1090. 

Failure of signaling device at crossing to 
operate, as affecting railroad company's lia- 
bility, 90 ALR2d 350. 

Liability for failure to rescue seaman who 
has gone overboard, 91 ALR2d 1032. 

Duty of proprietor toward visitor upon 
premises on private business with or errand 
or work for employee, 94 ALR2d 6. 

Tests of causation under Federal Employ- 
ers' Liability Act or Jones Act, 98 ALR2d 653. 

Liability of owner or operator of automo- 
bile for injury to one assisting in extricating 
or starting his stalled or ditched car, 3 
ALR3d 780. 

Receiver's personal liability for negligence 
in failing to care for or maintain property in 
receivership, 20 ALR3d 967. 

Liability for injury or death of child social 
guest, 20ALR3d 1127. 

Invasion of privacy by use of plaintiff's 
name or likeness in advertising, 23 ALR3d 
865. 

Employer's misrepresentation as to pros- 
pect, or duration, of employment as action- 
able fraud, 24 ALR3d 1412. 

Premises liability: Proceeding in the dark 
on inside steps or stairs as contributory 
negligence, 25 ALR3d 446. 

Liability in tort for interference with 
attorney-client or physician-patient relation- 
ship, 26 ALR3d 679. 



44 



51-1-6 



GENERAL PROVISIONS 



51-1-6 



Bailee's duty to insure bailed property, 28 
ALR3d 513. 

Liability of corporate directors or officers 
for negligence in permitting conversion of 
property of third persons by corporation, 29 
ALR3d 660. 

Right to recover damages in negligence 
for fear of injury to another, or shock or 
mental anguish at witnessing such injury, 29 
ALR3d 1337. 

Application of rule of strict liability in tort 
to person rendering services, 29 ALR3d 
1425; 100 ALR3d 1205. 

Liability in connection with fire or explo- 
sion incident to bulk storage, transportation, 
delivery, loading, or unloading of petroleum 
products, 32 ALR3d 1169. 

Public disclosure of person's indebtedness 
as invasion of privacy, 33 ALR3d 154. 

Duty of one other than carrier or em- 
ployer to render assistance to one for whose 
initial injury he is not liable, 33 ALR3d 301. 

Landlord's liability for damage to tenant's 
property caused by water, 35 ALR3d 143. 

Modern status of the rule absolving a 
possessor of land of liability to those coming 
thereon for harm caused by dangerous phys- 
ical conditions of which the injured party 
knew and realized the risk, 35 ALR3d 230. 

Surveyor's liability for mistake in, or mis- 
representation as to accuracy of, survey of 
real property, 35 ALR3d 504. 

Aviation: helicopter accidents, 35 ALR3d 
707. 

Tort liability of public schools and institu- 
tions of higher learning for accident occur- 
ring during school athletic events, 35 ALR3d 
725. 

Tort liability of public schools and institu- 
tions of higher learning for accidents associ- 
ated with chemistry experiments, shopwork, 
and manual or vocational training, 35 
ALR3d 758. 

Liability in connection with fire or explo- 
sion of explosives while being stored or 
transported, 35 ALR3d 1177. 

Tort liability of public schools and institu- 
tions of higher learning for accidents occur- 
ring during use of premises and equipment 
for other than school purposes, 37 ALR3d 
712. 

Liability for injury consequent upon 
spraying or dusting of crop, 37 ALR3d 833. 



Liability of product endorser or certifier 
for product-cause injury, 39 ALR3d 181. 

Landowner's right to relief against pollu- 
tion of his water supply by industrial or 
commercial waste, 39 ALR3d 910. 

Liability for alleged negligence of inde- 
pendent servicer or repairer of aircraft, 41 
ALR3d 1320. 

Landlord's liability for failure to protect 
tenant from criminal activities of third per- 
sons, 43 ALR5th 207. 

Liability of public accountant to third 
parties, 46 ALR3d 979. 

Liability in damages for withholding 
corpse from relatives, 48 ALR3d 240. 

Civil liability of undertaker in connection 
with embalming or preparation of body for 
burial, 48 ALR3d 261. 

Employer's knowledge of employee's past 
criminal record as affecting liability for em- 
ployee's tortious conduct, 48 ALR3d 359. 

Liability of hospital for injury caused 
through assault by a patient, 48 ALR3d 1288. 

Liability of oil and gas lessee or operator 
for injuries to or death of livestock, 51 
ALR3d 304. 

Liability for damage to highway or bridge 
caused by size or weight of motor vehicle or 
load, 53 ALR3d 1035; 31 ALR5th 171. 

Unsolicited mailing, distribution, house 
call, or telephone call as invasion of privacy, 
56 ALR3d 457. 

Liability of hospital, other than mental 
institution, for suicide of patient, 60 ALR3d 
880. 

Tort or statutory liability for failure or 
refusal of witness to give testimony, 61 
ALR3d 1297. 

May action for malicious prosecution be 
predicated on defense or counterclaim in 
civil suit, 65 ALR3d 901. 

Liability for injury or death of minor or 
other incompetent inflicted upon himself by 
gun made available by defendant, 75 ALR3d 
825. 

Liability of hospital or similar institution 
for giving erroneous notification of patient's 
death, 77 ALR3d 501. 

Violation of OSHA regulation as affecting 
tort liability, 79 ALR3d 962. 

Liability of estate for tort of executor, 
administrator, or trustee, 82 ALR3d 892. 

Tort liability for wrongfully causing one to 
be born, 83 ALR3d 15; 74 ALR4th 798. 



45 



51-1-6 



TORTS 



51-1-6 



Liability of one treating mentally afflicted 
patient for failure to warn or protect third 
persons threatened by patient, 83 ALR3d 
1201. 

Publication of address as well as name of 
person as invasion of privacy, 84 ALR3d 
1159. 

Accountant's malpractice liability to cli- 
ent, 92 ALR3d 396. 

Products liability: toys and games, 95 
ALR3d 390. 

Liability for interference with lease, 96 
ALR3d 862. 

Liability for interference with invalid or 
unenforceable contracts, 96 ALR3d 1294. 

Common-law right of action for damage 
sustained by plaintiff in consequence of sale 
or gift of intoxicating liquor or 
habit-forming drug to another, 97 ALR3d 
528; 62 ALR4th 16. 

Liability for negligently causing arrest or 
prosecution of another, 99 ALR3d 1113. 

When statute of limitations begins to run 
as to cause of action for development of 
latent industrial or occupational disease, 1 
ALR4th 117. 

Liability of one who sells gun to child for 
injury to third party, 4 ALR4th 331. 

Liability of parent for injury to 
unemancipated child caused by parent's 
negligence-modern cases, 6 ALR4th 1066. 

Insurer's tort liability for wrongful or neg- 
ligent issuance of life policy, 37 ALR4th 972. 

Liability to adult social guest injured oth- 
erwise than by condition of premises, 38 
ALR4th 200. 

Modern status of intentional infliction of 
mental distress as independent tort; "out- 
rage", 38 ALR4th 998. 

State's liability to one injured by improp- 
erly licensed driver, 41 ALR4th 111. 

Personal injury or property damage 
caused by lightning as basis of tort liability, 
46ALR4th 1170. 

Social host's liability for injuries incurred 
by third parties as a result of intoxicated 
guest's negligence, 62 ALR4th 16. 

Liability for personal injury or property 
damage caused by unauthorized use of auto- 
mobile which had been parked with keys 
removed from ignition, 70 ALR4th 276. 

Intentional spoliation of evidence, inter- 



fering with prospective civil action, as action- 
able, 70 ALR4th 984. 

Tort liability for nonmedical radiological 
harm, 73 ALR4th 582. 

Rescue doctrine: liability of one who neg- 
ligently causes motor vehicle accident for 
injuries to person subsequently attempting 
to rescue persons or property, 73 ALR4th 
737. 

Liability of proprietor of private gymna- 
sium, reducing salon, or similar health club 
for injury to patron, 79 ALR4th 127. 

Violation of governmental regulations as 
to conditions and facilities of swimming 
pools as affecting liability in negligence, 79 
ALR4th 461. 

Liability for interference with 
physician-patient relationship, 87 ALR4th 
845. 

Liability in tort for interference with 
attorney-client relationship, 90 ALR4th 621. 

Franchisor's tort liability for injuries alleg- 
edly caused by assault or other criminal 
activity on or near franchise premises, 2 
ALR5th 369. 

Liability of travel publication, travel agent, 
or similar party for personal injury or death 
of traveler, 2 ALR5th 396. 

Application of statute of limitations to 
actions for breach of duty in performing 
services of public accountant, 7 ALR5th 852. 

Breach of assumed duty to inspect prop- 
erty as ground for liability to third party, 13 
ALR5th 289. 

Motorist's liability for signaling other ve- 
hicle or pedestrian to proceed, or to pass 
signaling vehicle, 14 ALR5th 193. 

Financing agency's liability to purchaser 
of new home or structure for consequences 
of construction defects, 20 ALR5th 499. 

Liability for injury to customer from ob- 
ject projecting into aisle or passageway in 
store, 40 ALR5th 135. 

Liability of independent accountant to 
investors or shareholders, 48 ALR5th 389. 

Social host's liability for death or injuries 
incurred by person to whom alcohol was 
served, 54 ALR5th 313. 

Recovery for emotional distress based on 
fear of contracting HIV or AIDS, 59 ALR5th 
535. 



46 



51-1-7 



GENERAL PROVISIONS 



51-1-7 



51-1-7. When infraction of public duty gives cause of action to individual. 

Injury suffered in common with the community, though to a greater 
extent, will not give a right of action to an individual for the infraction of 
some public duty. In order for an individual to have such a right of action, 
there must be some special damage to him, in which the public has not 
participated. (Orig. Code 1863, § 2895; Code 1868, § 2901; Code 1873, 
§ 2952; Code 1882, § 2952; Civil Code 1895, § 3808; Civil Code 1910, 
§ 4404; Code 1933, § 105-102.) 



Law reviews. — For article, "Georgia's 
Public Duty Doctrine: The Supreme Court 



Held Hostage," see 51 Mercer L. Rev. 73 
(1999). 



JUDICIAL DECISIONS 



This section is basis of the distinction 
between private and public nuisances. 

Campbell v. Metropolitan S.R.R., 82 Ga. 320, 
9S.E. 1078 (1889). 

Elements of action under this section. — 
Any interference with landowner's right to 
the use of a street abutting his land by an 
obstruction of the street which inflicts upon 
him a damage and inconvenience respecting 
his lot, which is different in kind from that 
inflicted upon the community in general, 
constitutes an injury for which he is entitled 
to recover damages. Felton v. State Hwy. Bd., 
47 Ga. App. 615, 171 S.E. 198 (1933), later 
appeal, 57 Ga. App. 930, 181 S.E. 506 (1935). 

Direct interference with property right not 
necessary to maintain action. — It is not 
necessary, to constitute an interference with 
the abutting landowner's easement in the 
street, that the obstruction causing the inter- 
ference should be immediately in front of 
his lot or touching upon it. Felton v. State 
Hwy. Bd., 47 Ga. App. 615, 171 S.E. 198 
(1933), later appeal, 57 Ga. App. 930, 181 
S.E. 506 (1935). 

Public service corporation owes public 
duty. — A company which is the holder of a 
franchise to conduct the business of furnish- 
ing water to a city and its inhabitants and 
which has the power of eminent domain 
(§ 22-3-60) is a public service corporation, 
and owes a public duty to the city's inhabit- 
ants. Washington Water & Elec. Co. v. Pope 
Mfg. Co., 176 Ga. 155, 167 S.E. 286 (1932). 

But defendant, merely working as section 
foreman on railroad, owed no individual 
duty to public in keeping right of way free 
from ignitable growth. He did owe a duty to 



his master to properly perform his duties, 
and if there was embraced in such duties the 
obligation to keep the right of way free from 
ignitable growth there would be a liability on 
his part to his master for failure to perform 
his agreement. Knight v. Adantic Coast Line 
R.R., 4F. Supp. 713 (S.D. Ga. 1933), aff'd, 73 
F.2d76 (5th Cir. 1934). 

Local government duty to house convicts. 
— If county commissioners failed to per- 
form the public duty resting upon them to 
erect suitable quarters for safe-keeping and 
support of the county convicts under their 
control, they would be liable, if at all, for 
only such special damages as the plaintiff 
sustained by reason of their infraction of this 
public duty. McConnell v. Floyd County, 164 
Ga. 177, 137 S.E. 919 (1927). 

State may enjoin infliction of common 
injury such as public nuisance. — The state 
has an interest in the welfare, peace, and 
good order of its citizens and communities, 
and that an action may be maintained at the 
instance of the prosecuting attorney to en- 
join an existing or threatened public nui- 
sance, even though the nuisance constitutes 
a crime punishable under the criminal laws. 
Evans Theatre Corp. v. Slaton, 227 Ga. 377, 
180 S.E.2d 712, cert, denied, 404 U.S. 950, 
92 S. Ct. 281, 30 L. Ed. 2d 267 (1971). 

A court of equity is authorized to enjoin 
the exhibition of an obscene motion picture 
to the public. Evans Theatre Corp. v. Slaton, 
227 Ga. 377, 180 S.E.2d 712, cert, denied, 
404 U.S. 950, 92 S. Ct. 281, 30 L. Ed. 2d 267 
(1971). 

Cited in Hughes v. Weaver, 39 Ga. App. 
597, 148 S.E. 12 (1929). 



47 



51-1-8 



TORTS 
RESEARCH REFERENCES 



51-1-8 



Am. Jur. 2d. — 74A Am. Jur. 2d, Torts, § 1 
et seq. 

CJ.S. — 86 C.J.S., Torts, § 16. 

ALR. — Liability of gas company for in- 
jury or damage by escaping gas, 29 ALR 
1250; 47 ALR 488; 90 ALR 1082; 138 ALR 
870. 

Liability of county for torts in connection 
with activities which pertain, or are claimed 
to pertain, to private or proprietary func- 
tions, 101 ALR 1166; 16 ALR2d 1079. 

Duty and liability of governmental body 
responsible for condition of street or high- 
way for injury or damage due to cracking or 
upheaval of surface, 111 ALR 862. 

Liability of irrigation district for damages, 
160 ALR 1165. 

Liability of county for torts in connection 
with activities which pertain, or are claimed 
to pertain, to private or proprietary func- 
tion, 16 ALR2d 1079. 

Duty and liability of municipality as re- 
gards barriers for protection of adult pedes- 
trians who may unintentionally deviate from 
street or highway into marginal or external 
hazards, 44 ALR2d 633. 

Liability of municipality for torts in con- 
nection with airport, 66 ALR2d 634. 

Liability of gas company for personal in- 
jury or property damage caused by gas es- 
caping from mains in street, 96 ALR2d 1007; 
34 ALR5th 1. 

Liability of water distributor for damage 
caused by water escaping from main, 20 
ALR3d 1294. 



Personal liability of policeman, sheriff, or 
similar peace officer or. his bond, for injury 
suffered as a result of failure to enforce law 
or arrest lawbreaker, 41 ALR3d 700. 

Liability of governmental entity or public 
officer for personal injury or damages aris- 
ing out of vehicular accident due to negli- 
gent or defective design of a highway, 45 
ALR3d 875; 58 ALR4th 559. 

Liability of municipality or other govern- 
mental unit for failure to provide police 
protection, 46 ALR3d 1084. 

Liability of gas company for damage re- 
sulting from failure to inspect or supervise 
work of contractors digging near gas pipes, 
71 ALR3d 1174. 

Immunity of public officer from liability 
for injuries caused by negligently released 
individual, 5 ALR4th 773. 

Governmental liability for failure to re- 
duce vegetation obscuring view at railroad 
crossing or at street or highway intersection, 
22 ALR4th 624. 

Applicability of judicial immunity to acts 
of clerk of court under state law, 34 ALR4th 
1186. 

Personal injury liability of civil engineer 
for negligence in highway or bridge con- 
struction or maintenance, 43 ALR4th 911. 

Recoverability from tortfeasor of cost di- 
agnostic examinations absent proof of actual 
bodily injury, 46 ALR4th 1151. 

Res ipsa loquitor in gas leak cases, 34 
ALR5th 1. 



51-1-8. Right of action arising from breach of private duty. 

Private duties may arise from statute or from relations created by 
contract, express or implied. The violation of a private duty, accompanied 
by damage, shall give a right of action. (Orig. Code 1863, § 2897; Code 
1868, § 2903; Code 1873, § 2954; Code 1882, § 2954; Civil Code 1895, 
§ 3810; Civil Code 1910, § 4406; Code 1933, § 105-104.) 



Law reviews. — For article, "Statutes of 
Limitation: Counterproductive Complexi- 
ties," see 37 Mercer L. Rev. 1 (1985). 

For note discussing landlord liability for 
crime in apartments, see 5 Ga. L. Rev. 349 
(1971). For note discussing tavern keeper 



liability in Georgia for injury caused by a 
person to whom an intoxicant was sold, see 9 
Ga. L. Rev. 239 (1974). 

For comment on Parker v. Vaughn, 124 
Ga. App. 300, 183 S.E.2d 605 (1971), see 8 
Ga. St. B.J. 244 (1971). 



48 



51-1-8 



GENERAL PROVISIONS 



51-1-8 



Analysis 



JUDICIAL DECISIONS 



General Consideration 

Private Duty Related to Contract 

Applicability to Specific Cases 

1. Private Duty Imposed 

2. Breach of Private Duty 



General Consideration 

Elements of an action under this section. 

— Before a plaintiff can recover he must 
show that his injury and damage resulted 
from some negligent act or omission to act 
in some duty owed to him. Knight v. Atlantic 
Coast Line R.R., 4 F. Supp. 713 (S.D. Ga. 
1933), aff 'd, 73 F.2d 76 (5th Cir. 1934); Davis 
v. Johnson, 92 Ga. App. 858, 90 S.E.2d 426 
(1955); Carroll v. Griffin, 96 Ga. App. 826, 
101 S.E.2d 764 (1958); Black v. New Holland 
Baptist Church, 122 Ga. App. 606, 178 
S.E.2d57l (1970). 

Injury required for action. — Before an 
action for a tort will lie, there must be an 
injury accompanying such tort. Clements v. 
Hendi, 182 Ga. App. 118, 354 S.E.2d 700 
(1987). 

Right to recover even nominal damages. 

— Where there is fraud or breach of a legal 
or private duty accompanied by any damage, 
the law gives a right to recover damages, 
even only nominal damages, as compensa- 
tion. Holmes v. Drucker, 201 Ga. App. 687, 
411 S.E.2d728 (1991). 

Damages not generally recoverable for 
nonphysical injury. — Damages for injury to 
reputation, emotional distress, humiliation, 
mental and physical strain and the like are 
generally not recoverable in a legal malprac- 
tice case premised on mere negligence 
where no physical injury is suffered by the 
plaintiff. Hamilton v. Powell, Goldstein, 
Frazer 8c Murphy, 167 Ga. App. 411, 306 
S.E.2d 340 (1983), affd, 252 Ga. 149, 311 
S.E.2d818 (1984). 

"Private duty" here referred to evidently 
means private duty arising either from law or 
from relation created by contract, express or 
implied. Ellis v. Taylor, 172 Ga. 830, 159 S.E. 
266 (1931). 

Nominal damages sufficient under this 
section. — It is not the special damage or 
injury resulting from the wrongful act which 
gives rise to a cause of action, but the fact 



that nominal damages may be recovered is 
sufficient to create a cause of action and 
therefore result in the statute of limitations 
beginning to run. Jankowski v. Taylor, 
Bishop & Lee, 246 Ga. 804, 273 S.E.2d 16 
(1980). 

Instruction in exact language of section 
not required. — Where the trial court fully 
charged the jury regarding the common-law 
and statutory duties on which plaintiff based 
her claims, it was not error for the court to 
refuse a request to charge the exact lan- 
guage of this section. Wadkins v. Smallwood, 
243 Ga. App. 134, 530 S.E.2d 498 (2000). 

Cited in Lea v. Harris, 88 Ga. 236, 14 S.E. 
566 (1891); Kutchey Motor Co. v. Hood, 46 
Ga. App. 156, 167 S.E. 126 (1932); Wall v. 
Wall, 176 Ga. 757, 168 S.E. 893 (1933); Bell 
Fin. Co. v.Johnson, 180 Ga. 567, 179 S.E. 703 
(1935); Dale Elec. Co. v. Thurston, 82 Ga. 
App. 516, 61 S.E.2d 584 (1950); Berger & 
Co. v. Gray, 97 Ga. App. 230, 102 S.E.2d 925 
(1958); Georgia Elec. Co. v. Smith, 108 Ga. 
App. 851, 134 S.E.2d 840 (1964); Rawis Bros. 
Co. v. Paul, 115 Ga. App. 731, 155 S.E.2d 819 
(1967); Giacalone v. Tuggle, 141 Ga. App. 
123, 232 S.E.2d 589 (1977); Aretz v. United 
States, 604 F.2d 417 (5th Cir. 1979); Tolar 
Constr. Co. v. GAF Corp., 154 Ga. App. 127, 
267 S.E.2d 635 (1980); Sam Finley, Inc. v. 
Barnes, 156 Ga. App. 802, 275 S.E.2d 380 
(1980); Walton v. United States, 484 F. Supp. 
568 (S.D. Ga. 1980); Oden 8c Sims Used 
Cars, Inc. v. Thurman, 250 Ga. App. 709, 301 
S.E.2d 673 (1983); Friedlander v. Nims, 571 
F. Supp. 1188 (N.D. Ga. 1983); Blalock 
Mach. 8c Equip. Co. v. Iowa Mfg. Co., 576 F. 
Supp. 774 (N.D. Ga. 1983); Shessel v. Stroup, 
253 Ga. 56, 316 S.E.2d 155 (1984); Hodges v. 
Tomberlin, 170 Ga. App. 842, 319 S.E.2d 11 
(1984); Friedlander v. Troutman, Sanders, 
Lockerman 8c Ashmore, 595 F. Supp. 1442 
(N.D. Ga. 1984); National City Bank v. 
Busbin, 175 Ga. App. 103, 332 S.E.2d 678 
(1985); ITT Terryphone Corp. v. Tri-State 
Steel Drum, Inc., 178 Ga. App. 694, 344 



49 



51-1-8 



TORTS 



51-1-8 



General Consideration (Cont'd) 

S.E.2d 686 (1986); Whitehead v. Cuffie, 185 
Ga. App. 351, 364 S.E.2d 87 (1987); Bowling 
v. Gober, 206 Ga. App. 38, 424 S.E.2d 335 
(1992); Robinson v. J. Smith Lanier & Co., 
220 Ga. App. 737, 470 S.E.2d 272 (1996); 
Wisdom v. M.A. Hanna Co., 978 F. Supp. 
1471 (N.D. Ga. 1997). 

Private Duty Related to Contract 

Violation of specific duty — Action of tort 
may be maintained for violation of specific 
duty flowing from relations between the 
parties, created by contract Ellis v. Taylor, 
172 Ga. 830, 159 S.E. 266 (1931); Frank 
Graham Co. v. Graham, 90 Ga. App. 840, 84 
S.E.2d 579 (1954); Tapley v. Youmans, 95 Ga. 
App. 161, 97 S.E.2d 365 (1957); City of 
Douglas v. Johnson, 157 Ga. App. 618, 278 
S.E.2d 160 (1981). 

Tort consists of breach of duty. — If a 
contract imposes a legal duty upon a person, 
the neglect of that duty is a tort founded 
upon a contract; in such a case the liability 
arises out of a breach of duty incident to and 
created by the contract, but is only depen- 
dent upon the contract to the extent neces- 
sary to raise the duty. The tort consists in the 
breach of duty. Wolff ex rel. Salomon Bros. 8c 
Co. v. Southern Ry, 130 Ga. 251, 60 S.E. 569 
(1908); Ellis v. Taylor, 172 Ga. 830, 159 S.E. 
266 (1931); Warren v. Mitchell Motors, Inc., 
52 Ga. App. 58, 182 S.E. 205 (1935); 
Simmons v. May, 53 Ga. App. 454, 186 S.E. 
441 (1936); Frank Graham Co. v. Graham, 
90 Ga. App. 840, 84 S.E.2d 579 (1954). 

Such duty not always present. — In some 
contracts duties arise between the parties the 
violation of which would constitute a tort; 
however, such duties do not arise in every 
contract. Atlanta Gas Light Co. v. Newman, 
88 Ga. App. 252, 76 S.E.2d 536 (1953). 

Contract status alone insufficient to create 
tort action. — That a party occupies a status 
that sometimes gives rise to professional 
duties, does not transform all contract dis- 
agreements into torts based on a profes- 
sional relationship. Kaiser Aluminum & 
Chem. Corp. v. Ingersoll-Rand Co., 519 F. 
Supp. 60 (S.D. Ga. 1981). 

Mere nonfeasance of contract insufficient. 
— Mere breach of an ordinary contract does 
not constitute a tort; and if there is no 
liability except that arising out of a breach of 



a purely contractual duty, the action must be 
in contract, and an action in tort cannot be 
maintained. Hanson v. Aetna Life 8c Cas., 
625F.2d573 (5th Cir. 1980). 

Where the breach complained of is simply 
the neglect of a duty such as is expressly 
provided for by the contract itself, the action 
will be construed and treated as one brought 
ex contractu. Atlanta Gas Light Co. v. 
Newman, 88 Ga. App. 252, 76 S.E.2d 536 
(1953). 

While the plaintiff's relationship with de- 
fendant was defined by contract, the mere 
breach of that contract did not give rise to 
tort liability. Odem v. Pace Academy, 235 Ga. 
App. 648, 510 S.E.2d 326 (1998). 

Breach of contractual duty to pay money is 
not tort. Howard v. Central of Ga. Ry, 9 Ga. 
App. 617, 71 S.E. 1017 (1911). 

No damages for breach of oral contract 
for sale of realty. — Damages for the failure 
of a party to carry out the purported terms 
of an oral contract for the sale of realty were 
not authorized. Zappa v. Basden, 188 Ga. 
App. 472, 373 S.E.2d 246, cert, denied, 188 
Ga. App. 913, 373 S.E.2d 246 (1988). 

Applicability to Specific Cases 

1. Private Duty Imposed 

Common carrier's duty to transport pas- 
sengers. — It is the legal duty of a common 
carrier to receive and transport a person 
who has purchased a ticket over its lines, to 
the destination called for by the ticket, and 
should a carrier, in violation of the duty so 
imposed upon it, illegally expel a passenger 
from its bus and wrongfully refuse to carry 
him to his destination, it would be liable to 
the passenger for damages proximately re- 
sulting therefrom. Daigrepont v. Teche Grey- 
hound Lines, 189 Ga. 601, 7 S.E.2d 174 
(1940). 

Contract of landlord and cropper, when 
performance has been entered upon, creates 
status from which reciprocal rights and du- 
ties spring; and a tort, as well as a breach of 
contract, may arise from the violation of one 
of these duties. Payne v. Watters, 9 Ga. App. 
265, 70 S.E. 1114 (1911); Tapley v. Youmans, 
95 Ga. App. 161, 97 S.E.2d 365 (1957). 

Duty of electric company to insulate wires. 
— It is the duty of an electric company, to 
keep wires over city streets so insulated as to 
protect persons from injury. Trammell v. 



50 



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GENERAL PROVISIONS 



51-1-8 



Columbus R.R., 9 Ga. App. 98, 70 S.E. 892 
(1911). 

Duty to carefully perform gratuitous 
promise once undertaken. — One who, by a 
gratuitous promise or other conduct which 
he should realize will cause another reason- 
ably to rely upon the performance of defi- 
nite acts of service by him as the other's 
agent, causes the other to refrain from hav- 
ing such acts done by other available means 
is subject to a duty to use care to perform 
such service or, while other means are avail- 
able, to give notice that he will not perform. 
Mixon v. Dobbs Houses, Inc., 149 Ga. App. 
481, 254S.E.2d864 (1979). 

Duty to deliver message. — Even though 
the promises made by defendant to deliver 
plaintiff's message to her husband may have 
been gratuitous, once they were undertaken 
the duty arose to perform under the requi- 
site standard of care. Mixon v. Dobbs 
Houses, Inc., 149 Ga. App. 481, 254 S.E.2d 
864 (1979). 

Duty to furnish gas arising from contract. 
— Where the duty of the defendant to 
furnish the plaintiff with gas arose solely 
through their contract, the remedy of the 
plaintiff for a breach of that duty, even 
though the breach was occasioned by the 
defendant's negligence, was in contract and 
not in tort. Atlanta Gas Light Co. v. Newman, 
88 Ga. App. 252, 76 S.E.2d 536 (1953). 

Duty to repair carefully. — One who un- 
dertakes by virtue of a contract to repair a 
chattel for another owes to such other the 
duty to use ordinary care in making such 
repairs so as not to endanger the lives and 
limbs of others by a negligent performance, 
the consequences of which may be foreseen 
by him. Frank Graham Co. v. Graham, 90 Ga. 
App. 840, 84 S.E.2d 579 (1954). 

Hospital's duty to patients. — A private 
hospital in which patients are placed for 
treatment by their physicians, and which 
undertakes to care for the patients and 
supervise and look after them, is under the 
duty to exercise such reasonable care in 
looking after and protecting a patient as the 
patient's condition, which is known to the 
hospital through its agents and servants 
charged with the duty of looking after and 
supervising the patient, may require. Emory 
Univ. v. Shadburn, 47 Ga. App. 643, 171 S.E. 
192 (1933), aff'd, 180 Ga. 595, 180 S.E. 137 
(1935). 



Seller's duty to buyer upon sale of poten- 
tially harmful goods. — In connection with a 
sale of goods having a potentiality of doing 
harm by normal, intended, and 
nonnegligent use, where there is no fidu- 
ciary relationship between the seller and the 
purchaser, and no fraud, it is the duty of the 
seller to warn the purchaser at the time of 
sale and delivery, and a breach occurs at this 
time if there is a failure to warn. Everhart v. 
Rich's, Inc., 229 Ga. 798, 194 S.E.2d 425 
(1972), answer conformed to, 128 Ga. App. 
319, 196S.E.2d475 (1973). 

2. Breach of Private Duty 

Attorney's action for fee. — A petition by 
an attorney states a cause of action where it 
alleges that his cocounsel and their clients 
conspired with the intent to deprive peti- 
tioner of his compensation and his right to 
exercise his holding lien. Davidson v. Collier, 
104 Ga. App. 546, 122 S.E.2d 465 (1961). 

In legal malpractice cases a right of action 
arises immediately upon the wrongful act 
having been committed, even though there 
are no special damages. Ekern v. 
Westmoreland, 181 Ga. App. 741, 353 S.E.2d 
571 (1987). 

Bailor's recovery against bailee in tort. — 
Even where a bailment has been created by 
special contract, the bailor may recover 
against the bailee for his negligence in an 
action of tort. Warren v. Mitchell Motors, 
Inc., 52 Ga. App. 58, 182 S.E. 205 (1935). 

Driving horse on sidewalk in violation of 
statute. — Where there was proof going to 
show that the plaintiff, at the time she was 
injured by reason of the horse running over 
her, was standing upon a sidewalk in a city, 
and one of the acts of negligence charged by 
the petition was the alleged driving of the 
horse upon the sidewalk, in violation of a city 
ordinance, and such ordinance was admitted 
in evidence without objection, it was not 
error for the court to charge upon the 
validity and legal effect of the ordinance, 
even though the evidence indicated that the 
driving of the horse on the sidewalk was 
unintentional on the part of the driver, 
where the court expressly instructed the jury 
that, if such act was unintentional, it would 
constitute no violation of the ordinance. 
Clackum v. Bagwell, 40 Ga. App. 831, 151 
S.E. 689 (1930). 



51 



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TORTS 



51-1-8 



Applicability to Specific Cases (Cont'd) 
2. Breach of Private Duty (Cont'd) 

Injury to financial standing of a maker of a 
note, where the payee sends it to a bank for 
collection after it has been paid, is a tort. 
State Mut. Life 8c Annuity Ass'n v. Baldwin, 
116 Ga. 855, 43 S.E. 262 (1903). 

Negligent repair of automobile. — Negli- 
gence of the defendant in failing to repair 
the brakes to the plaintiff's automobile in 
such manner that they could be depended 
upon to function properly, although it rep- 
resented to him that they had been fixed 
and were in good working condition, consti- 
tuted a breach of the duty owing to the 
plaintiff to provide him with serviceable and 
dependable brakes, and this is true although 
the duty which the defendant owed the 
plaintiff in this respect was created by the 
contract, and although the defendant at the 
time it sold the automobile expressly war- 
ranted that the brakes were in good working 
order. Frank Graham Co. v. Graham, 90 Ga. 
App. 840, 84 S.E.2d 579 (1954). 



Violation of lease as tort against partners. 

— A landlord who leases in writing a build- 
ing for the conduct of a particular business, 
and verbally consents for his lessee to asso- 
ciate with him a partner in the business, is 
liable under this section to the partnership 
for damages caused to their business by a 
violation of the terms of the lease. DeFoor v. 
Stephens & Lastinger, 133 Ga. 617, 66 S.E. 
786 (1909). 

Insurer's failure to provide coverage in- 
formation. — Insurer's breach of § 33-3-28, 
requiring insurers to provide coverage infor- 
mation, did not create a cause of action and 
the right to seek damages under this section 
and § 51-1-6. Parris v. State Farm Mut. Auto. 
Ins. Co., 229 Ga. App. 522, 494 S.E.2d 244 
(1997). 

Age discrimination. — An at-will employee 
may not sue in tort under § 51-1-6 or this 
section for wrongful discharge based upon 
age discrimination. Reilly v. Alcan Alumi- 
num Corp., 272 Ga. 279, 528 S.E.2d 238 
(2000). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 74A Am. Jur. 2d, Torts, 
§ 29 et seq. 

C.J.S. — 86 C.J.S., Torts, § 8 et seq. 

ALR. — Violation of statute or ordinance 
in relation to explosives as ground of action 
in favor of one injured in person or property 
by explosion, 12 ALR 1309. 

Liability of one undertaking to repair au- 
tomobile for injury to third person, 52 ALR 
857. 

Marital or parental relation between plain- 
tiff and member of partnership as affecting 
right to maintain action in tort against part- 
nership or partners, 81 ALR 1106; 101 ALR 
1231. 

Contractual relationship as affecting right 
of action for death, 115 ALR 1026. 

Liability of private noncharitabie hospital 
or sanitarium for improper care or treat- 
ment of patients, 124 ALR 186. 

Loss or theft of passenger's ticket or other 
token of right to transportation as affecting 
rights and duties of carrier and passenger, 
127 ALR 222. 

Breach of lessor's agreement to repair as 
ground of liability for personal injury to 



tenant or one in privity with latter, 163 ALR 
300; 78 ALR2d 1238. 

Implied obligation of employee not to use 
trade secrets or confidential information for 
his own benefit or that of third persons after 
leaving the employment, 165 ALR 1453. 

Liability of insurer based upon its act of 
withdrawal after assumption of defense, 167 
ALR 243. 

Lockout or removal of place of employ- 
ment to avoid labor difficulties or punish 
employees as actionable wrong, 173 ALR 
674. 

Customary or statutory signal from train 
as measure of railroad's duty as to warning at 
highway crossing, 5 ALR2d 112. 

Breach of assumed duty to inspect prop- 
erty as ground of liability for damage or 
injury to third person, 6 ALR2d 284. 

Liability of garageman, service or repair 
station, or filling station operator for de- 
struction or damage of motor vehicle by fire, 
16 ALR2d 799. 

Recovery by tenant of damages for physi- 
cal injury or mental anguish occasioned by 
wrongful eviction, 17 ALR2d 936. 

Suspension or expulsion from social club 



52 



51-1-8 



GENERAL PROVISIONS 



51-1-8 



or similar society and the remedies therefor, 
20 ALR2d 344. 

Suspension or expulsion from profes- 
sional association and the remedies therefor, 
20 ALR2d 531. 

General contractor's liability for injuries 
to employees of other contractors on the 
project, 20 ALR2d 868. 

Liability for procuring breach of contract, 
26 ALR2d 1227; 96 ALR3d 1294. 

Rights and remedies arising out of delay in 
passing upon application for insurance, 32 
ALR2d 487. 

Liability of filling station operator, 
garageman, or the like, in connection with 
servicing vehicle with lubricants or fuel, 38 
ALR2d 1453. 

Liability of motor carrier for injuries to 
passengers from accident occasioned by 
blowout or other failure of tire, 44 ALR2d 
835. 

Liability of public accountant, 54 ALR2d 
324; 46 ALR3d 979. 

Tort liability for damages for misrepresen- 
tations as to area of real property sold or 
exchanged, 54 ALR2d 660. 

Shipper's liability to carrier for damage to 
vehicle or to other cargo resulting from 
defects in shipper's containers, 65 ALR2d 
770. 

Liability of liquor furnisher under civil 
damage or dramshop act for injury or death 
of intoxicated person from wrongful act of a 
third person, 65 ALR2d 923. 

Liability of one drawing an invalid will, 65 
ALR2d 1363. 

Liability of one repairing, installing, or 
servicing gas-burning appliance, for per- 
sonal injury, death, or property damage, 72 
ALR2d 865. 

Liability of taxicab carrier to passenger 
injured while boarding vehicle, 75 ALR2d 
988. 

Landlord's liability for personal injury or 
death of tenant or his privies from heating 
system or equipment, 86 ALR2d 791. 

Landlord's liability for personal injury or 
death of tenant or privies from electrical 
system or equipment, 86 ALR2d 838. 

Attorney's liability for negligence in pre- 
paring or recording security document, 87 
ALR2d 991. 

Shipowner's liability for injury caused to 
seaman or longshoreman by cargo or its 
stowage, 90 ALR2d 710. 



Liability of garageman to one ordering 
repair of motor vehicle, for defective work, 
92 ALR2d 1408; 1 ALR4th 347; 23 ALR4th 
274. 

Private person's duty and liability for fail- 
ure to protect another against criminal at- 
tack by third person, 10 ALR3d 619. 

Tenant's right to damages for landlord's 
breach of tenant's option to purchase, 17 
ALR3d 976. 

Duty of vendor of real estate to give pur- 
chaser information as to termite infestation, 
22 ALR3d 972. 

Surveyor's liability for mistake in, or mis- 
representation as to accuracy of, survey of 
real property, 35 ALR3d 504. 

Tort liability of public schools and institu- 
tions of higher learning for accident occur- 
ring during school athletic events, 35 ALR3d 
725. 

Tort liability of public schools and institu- 
tions of higher learning for accidents associ- 
ated with chemistry experiments, shopwork, 
and manual or vocational training, 35 
ALR3d 758. 

Tort liability of private schools and institu- 
tions of higher learning for accidents due to 
condition of buildings, equipment, or out- 
side premises, 35 ALR3d 975. 

Tort liability of public schools and institu- 
tions of higher learning for accidents occur- 
ring during use of premises and equipment 
for other than school purposes, 37 ALR3d 
712. 

Tort liability of public schools and institu- 
tions of higher learning for injuries due to 
condition of grounds, walks, and play- 
grounds, 37 ALR3d 738. 

Liability of independent accountant to 
investors or shareholders, 46 ALR3d 979; 48 
ALR5th 389. 

Liability of water supplier for damages 
resulting from furnishing impure water, 54 
ALR3d 936. 

Recovery for mental anguish or emotional 
distress, absent independent physical injury, 
consequent upon breach of contract in con- 
nection with sale of real property, 61 ALR3d 
922. 

Modern status of landlord's tort liability 
for injury or death of tenant or third person 
caused by dangerous condition of premises, 
64 ALR3d 339. 

Liability of insurance broker or agent to 
insured for failure to procure insurance, 64 
ALR3d 398. 



53 



51-1-9 



TORTS 



51-1-9 



Liability of installer or maintenance com- 
pany for injury caused by door of automatic 
passenger elevator, 64 ALR3d 1005. 

Liability of insurance agent or broker on 
ground of inadequacy of liability insurance 
coverage procured, 72 ALR3d 704. 

Liability of insurance agent or broker on 
ground of inadequacy of life, health, and 
accident insurance coverage procured, 72 
ALR3d 735. 

Liability of insurance agent or broker on 
ground of inadequacy of property insurance 
coverage procured, 72 ALR3d 747. 

Duty of contractor to warn owner of de- 
fects in subsurface conditions, 73 ALR3d 
1213. 

Liability of owner or operator of theatre 
or other amusement to patron assaulted by 
another patron, 75 ALR3d 441. 

Liability of bank, to other than party 
whose financial condition is misrepresented, 
for erroneous credit information furnished 
by bank or its directors, officers, or employ- 
ees, 77 ALR3d 6. 

Liability of bank in connection with night 
depository service, 77 ALR3d 597. 

Attorney's liability for negligence in cases 
involving domestic relations, 78 ALR3d 255. 

Liability of one who induces termination 
of employment of another by threatening to 
end own contractual relationship with em- 
ployer, 79 ALR3d 672. 

Civil liability of prison or jail authorities 
for self-inflicted injury or death of prisoner, 
79 ALR3d 1210. 

Liability of swimming facility operator for 
injury or death allegedly resulting from de- 
fects of diving board, slide, or other swim- 
ming pool equipment, 85 ALR3d 849. 

Liability of youth camp, its agents or em- 
ployees, or of scouting leader or organiza- 
tion, for injury to child participant in pro- 
gram, 88 ALR3d 1236. 

Legal malpractice by permitting statutory 



time limitation to run against client's claim, 
90 ALR3d 293. 

Accountant's malpractice liability to cli- 
ent, 92 ALR3d 396. 

Liability of manufacturer or seller for in- 
jury or death allegedly caused by failure to 
warn regarding danger in use of vaccine or 
prescription drug, 94 ALR3d 748. 

Liability of telephone company for injury 
by noise or electric charge transmitted over 
line, 99 ALR3d 628. 

Liability of common carrier for personal 
injury or death of passenger occasioned by 
inhalation of gases or fumes from exhaust, 
99ALR3d751. 

Telephone company's liability for disclo- 
sure of number or address of subscriber 
holding unlisted number, 1 ALR4th 218. 

Liability of university, college, or other 
school for failure to protect student from 
crime, 1 ALR4th 1099. 

Tort liability of public schools and institu- 
tions of higher learning for educational mal- 
practice, 1 ALR4th 1139. 

Liability of wharf owner or operator for 
personal injuries to invitees or licensees re- 
sulting from condition of premises or oper- 
ation of equipment, 34 ALR4th 572. 

Liability of employer with regard to inher- 
ently dangerous work for injuries to employ- 
ees of independent contractor, 34 ALR4th 
914. 

Insurer's tort liability for wrongful or neg- 
ligent issuance of life policy, 37 ALR4th 972. 

Liability of telephone company for mis- 
takes in or omissions from its directory, 47 
ALR4th 882. 

Liability of proprietor of private gymna- 
sium, reducing salon, or similar health club 
for injury to patron, 79 ALR4th 127. 

Breach of assumed duty to inspect prop- 
erty as ground for liability to third party, 13 
ALR5th 289. 



51-1-9. Recovery for torts to self, wife, child, ward, or servant. 

Every person may recover for torts committed to himself, his wife, his 
child, his ward, or his servant. (Orig. Code 1863, § 2903; Code 1868, 
§ 2909; Code 1873, § 2960; Code 1882, § 2960; Civil Code 1895, § 3816; 
Civil Code 1910, § 4412; Code 1933, § 105-107.) 



law reviews. — For note advocating rec- 
ognition of interspousal tort actions for per- 



sonal injuries during coverture, see 14 Mer- 
cer L. Rev. 434 (1963). For note, "Torts — 



54 



51-1-9 



GENERAL PROVISIONS 



51-1-9 



Parental Immunity in a Modern Perspec- 
tive," see 4 Ga. St. BJ. 142 (1967). For note 
tracing the development in the United 
States and Australia of recovery for negli- 
gently inflicted mental distress arising from 
peril or injury to another, see 26 Emory L.J. 
647 (1977). 

For comment criticizing McDade v. West, 
80 Ga. App. 481, 56 S.E.2d 299 (1949), and 
the former common-law rule denying the 
wife an action for loss of consortium, see 1 
Mercer L. Rev. 316 (1950). For comment 
suggesting grant of right of action to wife for 
loss of consortium with husband, in light of 
McDade v. West, 80 Ga. App. 481, 56 S.E.2d 
299 (1949), see 12 Ga. B.J. 330 (1950). For 
comment on Brown v. Georgia Tenn. 
Coaches, Inc., 88 Ga. App. 519, 77 S.E.2d 24 



(1953), allowing wife's recovery for loss of 
consortium of husband which resulted from 
personal injuries to him caused by defen- 
dant's negligence, see 16 Ga. BJ. 335 (1954). 
For comment on Hornbuckle v. Plantation 
Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 
(1956), recognizing child's right of action 
for prenatal injuries suffered prior to viabil- 
ity, see 8 Mercer L. Rev. 377 (1957). For 
comment discussing trend toward allowance 
of a wrongful death action for death of an 
unborn child, see 1 Ga. St. BJ. 508 (1968). 
For comment suggesting reconsideration of 
Georgia's parental immunity doctrine in 
light of Gibson v. Gibson, 3 Cal. 3d 909, 92 
Cal. Rptr. 288, 479 P.2d 648 (1971), see 22 
Mercer L. Rev. 803 (1971). 



JUDICIAL DECISIONS 



Analysis 

General Consideration 
Torts to Wife 
Torts to Child 
Torts to Servant 



General Consideration 

This section is a declaration of the com- 
mon law. Collins v. Martin, 157 Ga. App. 45, 
276 S.E.2d 102 (1981); Ireland Elec. Corp. v. 
Georgia Hwy. Express, Inc., 166 Ga. App. 
150, 303 S.E.2d 497 (1983); McBride v. 
GMC, 737 F. Supp. 1563 (M.D. Ga. 1990). 

Intentional infliction of emotional dis- 
tress. — To sustain a cause of action for 
intentional infliction of emotional distress 
through the use of abusive or obscene lan- 
guage, the defendant's conduct must have 
been so abrasive or obscene as to naturally 
humiliate, embarrass, frighten, or outrage 
the plaintiff, and the alleged emotional dis- 
tress must be so severe that no reasonable 
person could be expected to endure it 
Williams v. Voljavec, 202 Ga. App. 580, 415 
S.E.2d31 (1992). 

There is no right of action in one spouse 
against another for personal tort not involv- 
ing any property right, and this is true re- 
gardless of the fact that the tort is wantonly 
and maliciously inflicted. Wright v. Wright, 
85 Ga. App. 721, 70 S.E.2d 152 (1952). 

Applicable statute of limitation. — Section 
9-3-31, providing a four-year limitation for 



actions based on injury to personalty, applies 
to actions for loss of services under this 
section. Silvertooth v. Shallenberger, 49 Ga. 
App. 133, 174 S.E. 365 (1934), overruled on 
other grounds, Parker v. Vaughan, 124 Ga. 
App. 300, 183 S.E.2d 605 (1971). 

The fetal victim of a tort must be born 
alive in order to seek recovery from the 
alleged tortfeasor. Peters v. Hospital Auth., 
265 Ga. 487, 458 S.E.2d 628 (1995). 

Cited in McDowell v. Georgia R.R., 60 Ga. 
320 (1878); City of Atianta v. Dorsey, 73 Ga. 
479 (1884); King v. Southern Ry., 126 Ga. 
794, 55 S.E. 965 (1906); Pinkerton Nat'l 
Detective Agency, Inc. v. Stevens, 108 Ga. 
App. 159, 132 S.E.2d 119 (1963); Smith v. 
Tri-State Culvert Mfg. Co., 126 Ga. App. 508, 
191 S.E.2d 92 (1972); Bradley v. Tenneco Oil 
Co., 146 Ga. App. 161, 245 S.E.2d 862 
(1978); Coley v. M & M Mars, Inc., 461 F. 
Supp. 1073 (M.D. Ga. 1978); Chance v. 
Hanson, 160 Ga. App. 329, 287 S.E.2d 57 
(1981). 

Torts to Wife 

Wife may sue for any injury to her person 
or reputation. Martin v. Gurley, 201 Ga. 493, 
39S.E.2d878 (1946). 



55 



51-1-9 



TORTS 



51-1-9 



Torts to Wife (Cont'd) 

Husband's suit for injury to wife. — The 

husband being presumed to be head of the 
house and responsible for his wife's neces- 
sary expenses, and being also entitled to the 
services, society, and consortium of his wife, 
these are the only proper elements of dam- 
age for which the plaintiff may sue in his 
capacity as husband. Community Gas Co. v. 
Williams, 87 Ga. App. 68, 73 S.E.2d 119 
(1952). 

Wife only has claim for certain direct 
damages. — Wife's physical injuries and 
attendant pain, suffering, and nervous im- 
pairment are no part of her husband's cause 
of action, nor is her resultant nervousness 
and impatience, except insofar as it causes a 
loss of her services to him. Community Gas 
Co. v. Williams, 87 Ga. App. 68, 73 S.E.2d 
119 (1952). 

Wife's only recourse for recovery of med- 
ical expenses is through her husband, and 
the state of her health and her life expect- 
ancy must necessarily therefore be consid- 
ered in determining the award of damages 
for her benefit. Old Dominion Freight Line 
v. Martin, 153 Ga. App. 135, 264 S.E.2d 585 
(1980). 

Joinder of wife in action by husband is 
permissible. East Tenn., V. & G.R.R. v. Cox, 
57 Ga. 252 (1876). 

Measure of wife's medical expense dam- 
ages. — So long as the law vests only in the 
husband the right to sue for his wife's nec- 
essary medical expenses, the correct mea- 
sure of such damages must allow for the 
recovery of what the evidence shows to be 
the anticipated expenditures for necessary 
and required care of the wife for the expect- 
ancy of her life. Old Dominion Freight Line 
v. Martin, 153 Ga. App. 135, 264 S.E.2d 585 
(1980). 

Life expectancy tables permitted to calcu- 
late damages over time. — Trial courts may 
instruct the jury to consider mortality tables 
as to the wife's life expectancy so as to 
ascertain what future medical expenses are 
reasonably certain to accrue as the natural 
and proximate result of her injuries. Old 
Dominion Freight Line v. Martin, 153 Ga. 
App. 135, 264 S.E.2d 585 (1980). 

Value of wife's services is a jury question 
to be estimated in the light of the evidence 
and their own observation and experience. 



Community Gas Co. v. Williams, 87 Ga. App. 
68, 73S.E.2d 119 (1952). 

At common law, wife had no cause of 
action for loss of consortium. McDade v. 
West, 80 Ga. App. 481, 56 S.E.2d 299 (1949). 

Courts now recognize wife's action for 
consortium. — A wife has an independent 
cause of action for loss of consortium due to 
a negligent injury to her husband. Brown v. 
Georgia-Tennessee Coaches, Inc., 88 Ga. 
App. 519, 77 S.E.2d 24 (1953); Lemon v. 
Bank Lines, 411 F. Supp. 677 (S.D. Ga. 
1976), aff'd, 562 F.2d 1259 (5th Cir. 1977). 

Consortium action derivative in nature. — 
The right of the wife to recover for loss of 
consortium on account of alleged injuries 
inflicted upon her husband cannot arise 
unless her right to the consortium has been 
adversely affected under circumstances giv- 
ing rise to liability and from which liability 
attaches. One spouse's right of action for the 
loss of the other's society or consortium is a 
derivative one, stemming from the right of 
the other. Armstrong Furn. Co. v. Nickle, 
110 Ga. App. 686, 140 S.E.2d 72 (1964). 

Torts to Child 

Infant may maintain action for damages 
on account of any tort committed resulting 
in damages to him, whether the tortious act 
affects the parent or not. Kite v. Brooks, 51 
Ga. App. 531, 181 S.E. 107 (1935). 

Child may recover for prenatal injury. — 
If a child born after an injury sustained at 
any period of its prenatal life can prove the 
effect on it of a tort, it has a right to recover. 
Hornbuckle v. Plantation Pipe Line Co., 212 
Ga. 504, 93 S.E.2d 727 (1956). 

Child generally may not sue parent in tort 
unless emancipated. — While an 
unemancipated minor cannot sue a father 
for a tort to himself, such an action is 
maintainable if the child was emancipated at 
the time of the tort and the action. Fowlkes 
v. Ray-O-Vac Co., 52 Ga. App. 338, 183 S.E. 
210 (1935). 

Except that unemancipated child may sue 
parent for intentional physical harm. — 
While an unemancipated minor child has no 
cause of action against a parent for simple 
negligence, such child may maintain an ac- 
tion for personal injury against a parent for 
a willful or malicious act, provided it is such 
an act of cruelty as to authorize forfeiture of 
parental authority. Wright v. Wright, 85 Ga. 



56 



51-1-9 



GENERAL PROVISIONS 



51-1-9 



App. 721, 70 S.E.2d 152 (1952). 

Unemancipated infant may recover 
against employer of its parent for injuries it 
sustained due to negligence of parent while 
acting in service of employer, although the 
child could not maintain an action against 
the parent for the tortious act. Stapleton v. 
Stapleton, 85 Ga. App. 728, 70 S.E.2d 156 
(1952). 

Adult child may sue parent for negligence, 
and it follows that a parent may also sue an 
adult child. Davis v. Cox, 131 Ga. App. 611, 
206S.E.2d655 (1974). 

Statutory right of the parent to sue is 
merely declaratory of the common law, 
where such right to recover is, by legal 
fiction, predicated upon the relation of mas- 
ter and servant, and is limited to the recov- 
ery of damages for loss of the child's ser- 
vices. Bell v. Central R.R., 73 Ga. 520 (1884); 
Frazier v. Georgia R.R. 8c Banking Co., 101 
Ga. 70, 28 S.E. 684 (1897); Kite v. Brooks, 51 
Ga. App. 531, 181 S.E. 107 (1935). 

Section 51-2-2 is a mere codification of 
common-law rules, and at common law the 
liability of a father for the torts of his child 
was the same as the liability of a master for 
the torts of his servant. Upon that ground is 
based the right of action given to a father for 
a tort committed to his child or ward, set 
forth in this section. Stanford v. Smith, 173 
Ga. 165, 159 S.E. 666, answer conformed to, 
43 Ga. App. 747, 160 S.E. 93 (1931). 

Right to recover damages for loss of ser- 
vices and medical expenses from tortious 
injury to minor is in the father. Kite v. 
Brooks, 51 Ga. App. 531, 181 S.E. 107 
(1935); City of Dalton v. Webb, 131 Ga. App. 
599, 206S.E.2d639 (1974). 

Action by father. — A father may sue by 
virtue of this section for injuries to his minor 
son, as for injuries to a servant, if the son is 
old enough to render services. Shields v. 
Yonge, 15 Ga. 349 (1854); Allen v. Atlanta 
S.R.R., 54 Ga. 503 (1875). 

Father must suffer such pecuniary dam- 
ages to recover. — A father cannot maintain 
a suit for a wrong done to his minor child, 
unless he has incurred a direct pecuniary 
injury therefrom, by reason of loss of service 
or expenses necessarily consequent thereon. 
Sorrels v. Matthews, 129 Ga. 319, 58 S.E. 819 
(1907); Kite v. Brooks, 51 Ga. App. 531, 181 
S.E. 107 (1935). 

Mother of fatherless child may recover for 
loss of services. City of Albany v. Lindsey, 1 1 



Ga. App. 573, 75 S.E. 911 (1912). 

There is presumption that infant less than 
two years old is incapable of performing 
valuable services. Crenshaw v. Louisville & 
N.R.R., 15 Ga. App. 182, 82 S.E. 767 (1914). 

Recovery not permitted for parent's emo- 
tional distress. — Recovery for emotional 
distress and mental suffering which results 
from the parent's learning of injuries to his 
child or seeing the injured child is not 
allowed. Cotton States Mut. Ins. Co. v. 
Crosby, 149 Ga. App. 450, 254 S.E.2d 485 
(1979), rev'd on other grounds, 244 Ga. 456, 
260S.E.2d860 (1979). 

Parent's right of action generally deriva- 
tive. — There is no independent right of 
action available to a parent who is not 
present at an incident in which his child is 
injured by the negligence of another. Cotton 
States Mut. Ins. Co. v. Crosby, 149 Ga. App. 
450, 254 S.E.2d 485 (1979), overruled on 
other grounds, 244 Ga. 456, 260 S.E.2d 860 
(1979); Posey v. Medical Center-West, Inc., 
184 Ga. App. 404, 361 S.E.2d 505, cert, 
denied, 184 Ga. App. 910, 361 S.E.2d 505 
(1987). 

Emancipated child may recover certain 
damages in own name. — While ordinarily 
the cause of action for lost earnings and 
medical expenses expended is in the father 
of a minor child, a father may emancipate 
his minor child, and thereby vest in the child 
the right through his guardian or by next 
friend to sue for such damages. Brown v. 
Seaboard Air Line R.R., 91 Ga. App. 35, 84 
S.E.2d707 (1954). 

Father loses own right of recovery once 
vested in child. — While a father may revoke 
his emancipation of his minor child, once he 
divests himself of a cause of action for loss of 
earnings and medical expenses and vests 
such cause of action in the child by emanci- 
pating the child, and the child sues on the 
cause of action and pursues it to judgment, 
the father cannot revest the cause of action 
in himself by revoking his emancipation of 
the child. Brown v. Seaboard Air Lines R.R., 
91 Ga. App. 35, 84 S.E.2d 707 (1954). 

Death of child will not bar action under 
this section. Chick v. Southwestern R.R., 57 
Ga. 357 (1876). 

Pleadings. — A petition which sets forth a 
good cause of action for loss of services, 
should not be dismissed because of unnec- 
essary allegations. McCarthy v. Gulf Ref. Co., 
26 Ga. App. 665, 107 S.E. 92 (1921). 



57 



51-1-9 



TORTS 



51-1-9 



Torts to Servant 

Application of common-law action per 
quod servitium amisit. — The common-law 
action per quod servitium amisit, which sup- 
ports the master's recovery against the em- 
ployer of a tort-feasor for the loss of services 
of his servant, is applicable to those in- 
stances in which the inflicted tort was inten- 
tional, with the determination of any liability 
on behalf of the employer of the tort-feasor 
who committed the intentional tort being 
governed by the applicable rules of the law 
of agency. Ireland Elec. Corp. v. Georgia 



Hwy. Express, Inc., 166 Ga. App. 150, 303 
S.E.2d497 (1983). 

An employer does not have a cause of 
action against the employer of an alleged 
tort-feasor for the loss of his employee's 
services due to injuries sustained by that 
employee as a result of the tort-feasor's 
negligence. Ireland Elec. Corp. v. Georgia 
Hwy. Express, Inc., 166 Ga. App. 150, 303 
S.E.2d 497 (1983); Risdon Enters., Inc. v. 
Colemill Enters., Inc., 172 Ga. App. 902, 324 
S.E.2d738 (1984). 



OPINIONS OF THE ATTORNEY GENERAL 

Question of whether child of two years is parents is, in case of doubt, for jury. 1948-49 
capable of rendering valuable services to Op. Att'y Gen. p. 617. 

RESEARCH REFERENCES 



Am. Jur. 2d. — 27 Am. Jur. 2d, Employ- 
ment Relationships, §§ 248 et seq., 456, 59 
Am. Jur. 2d, Parent and Child, § 97 et seq. 

C.J.S. — 41 C.J.S., Husband and Wife, 
§ 400 et seq. 57 C.J.S. , Master and Servant, 
§ 622. 67A C.J.S., Parent and Child, § 137 et 
seq. 

ALR. — Liability for misrepresenting age 
of child to one who, having employed a child 
below employable age, has incurred liability 
for injury to him, 1 ALR 302. 

Necessity of obtaining the husband's con- 
sent to operation on wife, 4 ALR 1531. 

Liability of electric light or power com- 
pany for injuries to employee of patron, 9 
ALR 174. 

Right of one spouse to enjoin torts of 
other, 9 ALR 1066. 

Avoidance of infant's release of damages 
for personal tort, 13 ALR 402. 

Duty of carrier to guard young children 
against danger of falling from car, 28 ALR 
1035. 

What items of damage on account of 
personal injury to infant belong to him and 
what to parent, 37 ALR 11; 32 ALR2d 1060. 

Liability of person acting under authority 
of one spouse for injury to other spouse, 57 
ALR 755. 

Right to recover for death of, or injury to, 
servant due to his conscious exposure in 
attempt to save property, 61 ALR 579. 



Fiction of loss of services as a condition of 
action for abduction of child, 72 ALR 847. 

Act or omission which would not support 
an action for damages by person injured as 
ground of action by parent or spouse for 
consequential damages, 94 ALR 1211. 

Action by one person for consequential 
damages on account of injury to another as 
one for bodily or personal injury within 
statute of limitations, 108 ALR 525. 

Authority of next friend or guardian ad 
litem, or of attorney employed by him, to 
receive payment or acknowledge satisfaction 
of judgment in favor of infant, 111 ALR 686. 

Husband's right to damages for loss of 
consortium due to personal injury to wife, 
133 ALR 1156. 

Damages on account of loss of earnings or 
impairment of earning capacity due to wife's 
personal injury as recoverable by her or by 
her husband, 151 ALR 479. 

Liability of parent or person in loco 
parentis for personal tort against minor 
child, 19 ALR2d 423; 41 ALR3d 904. 

What items of damage on account of 
personal injury to infant belong to him, and 
what to parent, 32 ALR2d 1060. 

Spouse's cause of action for negligent 
personal injury as separate or community 
property, 35 ALR2d 1199. 

Right of wife to recover in individual 



58 



51-1-9 



GENERAL PROVISIONS 



51-1-9 



capacity for medical expenses of husband 
injured by third person's negligence, 42 
ALR2d 843. 

Employer's right of action against third 
person tortiously killing or injuring em- 
ployee, 57 ALR2d 802. 

Right of parent or representatives to main- 
tain tort action against minor child, 60 
ALR2d 1284; 62 ALR3d 1284. 

Truant or attendance officer's liability for 
assault and battery or false imprisonment, 62 
ALR2d 1328. 

Liability of landlord to tenant or member 
of tenant's family, for injury by animal or 
insect, 67 ALR2d 1005. 

Right of recovery over by means of 
subrogation or similar theory, against a 
third-person tort-feasor, of an employer who 
has paid salary, wages, sick leave pay, medical 
expenses, or the like, to or for an injured 
employee, 70 ALR2d 475. 

Family relationship other than that of 
parent and child or husband and wife be- 
tween tort-feasor and person injured or 
killed as affecting right to maintain action, 
81 ALR2d 1155. 

Injured child's subsequent marriage to 
tort-feasor as barring parent's action for 
medical expense, loss of service, and the 
like, 91 ALR2d 910. 

Fact that tort-feasor is member of class of 
beneficiaries as affecting right to maintain 
action for wrongful death, 95 ALR2d 585. 

Conflict of laws as to right of action be- 
tween husband and wife or parent and child, 
96 ALR2d 973. 

Judgment in spouses' action for personal 
injuries as binding, as regards loss of consor- 
tium and similar resulting damage, upon 
other spouse not a party to the action, 12 
ALR3d 933. 

Medical expenses due to injury to wife as 
recoverable by her or by husband, 21 ALR3d 
1113. 

Spouse's or parent's right to recover puni- 
tive damages in connection with recovery of 
damages for medical expenses or loss of 
services or consortium arising from personal 
injury to other spouse or to child, 25 ALR3d 
1416. 

Admissibility of evidence of family circum- 
stances of parties in personal injury actions, 
37 ALR3d 1082. 

Liability for prenatal injuries, 40 ALR3d 
1222. 



Conflict of laws as to right of action for 
loss of consortium, 46 ALR3d 880. 

Death action by or in favor of parent 
against unemancipated child, 62 ALR3d 
1299. 

Measure and elements of damages in 
wife's action for loss of consortium, 74 
ALR3d 805. 

Right of professional corporation to re- 
cover damages based on injury or death of 
attorney or doctor associate, 74 ALR3d 1 129. 

Carrier's liability for injury or death of 
infant passenger as affected by fact that child 
was in custody of parent or other adult, 74 
ALR3d 1171. 

Action against parent by or on behalf of 
unemancipated minor child for wrongful 
death of other parent, 87 ALR3d 849. 

Liability for child's personal injuries or 
death resulting from tort committed against 
child's mother before child was conceived, 
91 ALR3d 316. 

Modern status of interspousal tort immu- 
nity in personal injury and wrongful death 
actions, 92 ALR3d 901. 

Judgment in death action as precluding 
subsequent personal injury action by poten- 
tial beneficiary of death action, or vice versa, 
94 ALR3d 676. 

Employer's right of action for loss of ser- 
vices or the like against third person 
tortiously killing or injuring employee, 4 
ALR4th 504. 

Recovery for loss of consortium for injury 
occurring prior to marriage, 5 ALR4th 300. 

Liability of parent for injury to 
unemancipated child caused by parent's 
negligence, 6 ALR4th 1066. 

Child's right of action for loss of support, 
training, parental attention, or the like, 
against a third person negligently injuring 
parent, 11 ALR4th 549. 

Injured party's release of tort-feasor as 
barring spouse's action for loss of consor- 
tium, 29 ALR4th 1200. 

Action for loss of consortium based on 
nonmarital cohabitation, 40 ALR4th 553. 

Sexual child abuser's civil liability to 
child's parent, 54 ALR4th 93. 

Parent's right to recover for loss of consor- 
tium in connection with injury to child, 54 
ALR4th 112. 

When must loss-of-consortium claim be 
joined with underlying personal injury 
claim, 60ALR4th 1174. 



59 



51-1-10 



TORTS 



51-1-10 



Excessiveness or adequacy of damages 
awarded for noneconomic loss caused by 
personal injury or death of spouse, 61 
ALR4th 309. 

Recoverability of compensatory damages 
for mental anguish or emotional distress for 
tortiously causing another's birth, 74 
ALR4th 798. 

Right of child to action against mother for 
infliction of prenatal injuries, 78 ALR4th 
1082. 



Infliction of emotional distress: toxic ex- 
posure, 6 ALR5th 162. 

Liability of insurer, or insurance agent or 
adjuster, for infliction of emotional distress, 
6 ALR5th 297. 

Prosecution of mother for prenatal sub- 
stance abuse based on endangerment of or 
delivery of controlled substance to child, 70 
ALR5th 461. 



51-1-10. Who may bring an action for torts to wife; action by wife living 
apart from husband for torts to self or children. 

If a tort shall be committed upon the person or reputation of the wife, the 
husband or wife may recover therefor; if the wife shall be living separate 
from the husband, she may bring an action for such torts and also torts to 
her children and recover the same to her use. (Orig. Code 1863, § 1703; 
Code 1868, § 1745; Code 1873, § 1755; Code 1882, § 1755; Civil Code 
1895, § 2475; Civil Code 1910, § 2994; Code 1933, § 53-511.) 



Law reviews. — For comment criticizing 
McDade v. West, 80 Ga. App. 481, 56 S.E.2d 
299 (1949), and the former common-law 
rule denying the wife an action for loss of 
consortium, see 1 Mercer L. Rev. 316 (1950). 
For comment suggesting grant of right of 
action to wife for loss of consortium with 
husband, in light of McDade v. West, 80 Ga. 



App. 481, 56 S.E.2d 299 (1949), see 12 Ga. 
B.J. 330 (1950). For comment on Brown v. 
Georgia Tenn. Coaches, Inc., 88 Ga. App. 
519, 77 S.E.2d 24 (1953), allowing wife's 
recovery for loss of consortium of husband 
which resulted from personal injuries to him 
caused by defendant's negligence, see 16 Ga. 
BJ. 335 (1954). 



JUDICIAL DECISIONS 



Two distinct causes of action. — When a 
married woman is injured by the wrongful 
conduct of another, two different causes of 
action may arise: the one in her favor for her 
own pain and suffering, and the other in 
favor of the husband for the loss of his wife's 
services and for expenses incurred as a 
consequence of the injuries to her. Georgia 
R.R. 8c Banking Co. v. Tice, 124 Ga. 459, 52 
S.E. 916 (1905). 

Wife may sue for any injury to her person 
or reputation. Martin v. Gurley, 201 Ga. 493, 
39S.E.2d878 (1946). 

A wife, although living with her husband 
may sue and recover in her own name for a 
tort committed to her person causing phys- 
ical injury to her. City of Atlanta v. Dorsey, 73 
Ga. 479 (1884); Mayor of Athens v. Smith, 
111 Ga. 870, 36 S.E. 955 (1900). 

Wife may maintain in her own name action 



for slanderous words alleged to have been 
used of and concerning herself. Pavlovski v. 
Thornton, 89 Ga. 829, 15 S.E. 822 (1892). 

Husband cannot recover damages for pain 
and suffering of his wife, that action is in the 
wife. Collins v. Martin, 157 Ga. App. 45, 276 
S.E.2d 102 (1981). 

Wife's physical injuries and attendant 
pain, suffering and nervous impairment are 
no part of her husband's cause of action, nor 
is her resultant nervousness and impatience, 
except insofar as it causes a loss of her 
services to him. Community Gas Co. v. Will- 
iams, 87 Ga. App. 68, 73 S.E.2d 119 (1952). 

Expenses incurred as consequence of in- 
jury to wife. — A married woman cannot 
recover for expenses incurred by her in 
consequence of an injury, unless actually 
paid by her, there being no testimony going 
to show that she was living separate from her 



60 



51-1-10 



GENERAL PROVISIONS 



51-1-10 



husband, that she was a free trader, that she 
had any separate property, or that she per- 
sonally undertook to pay these expenses or 
in any manner bound herself to do so. The 
married woman's law does not have the 
effect of giving her the right to recover for 
such expenses, without joining her husband 
in the action. Lewis v. City of Atlanta, 77 Ga. 
756 (1886). 

Wife's only recourse for recovery of med- 
ical expenses is through her husband, and 
the state of her health and her life expect- 
ancy must necessarily therefore be consid- 
ered in determining the award of damages 
for her benefit. Old Dominion Freight Line 
v. Martin, 153 Ga. App. 135, 264 S.E.2d 585 
(1980). 

In the event of injury to the wife, the right 
to recover the expenses incurred for medi- 
cal, hospital and funeral bills is not in her 
but in the husband, unless there are special 
circumstances, as where the wife contracts to 
be personally bound. Old Dominion Freight 
Line v. Martin, 153 Ga. App. 135, 264 S.E.2d 
585 (1980). 

Husband may recover loss of wife's ser- 
vices and consortium. — The husband being 
presumed to be head of the house and 
responsible for his wife's necessary expenses, 
and being also entitled to the services, soci- 
ety and consortium of his wife, these are the 
only proper elements of damage for which 
the plaintiff may sue in his capacity as hus- 
band. Community Gas Co. v. Williams, 87 
Ga. App. 68, 73 S.E.2d 119 (1952); Collins v. 
Martin, 157 Ga. App. 45, 276 S.E.2d 102 
(1981). 

Measure of damages for wife's injuries. — 
So long as the law vests only in the husband 
the right to sue for his wife's necessary 
medical expenses, the correct measure of 
such damages must allow for the recovery of 
what the evidence shows to be the antici- 
pated expenditures for necessary and re- 
quired care of the wife for the expectancy of 
her life. Old Dominion Freight Line v. Mar 
tin, 153 Ga. App. 135, 264 S.E.2d 585 (1980). 

Injuries suffered before marriage. — 
When a woman suffers a tortious personal 
injury, impairing or destroying her earning 
capacity, the cause of action arising there- 
from becomes a "chose in action," and a 
part of her separate estate, notwithstanding 
her subsequent marriage, though the dam- 
ages which under the law she would have 



been entitled to recover as a result of the tort 
may include compensation for loss of earn- 
ing capacity, which the after-acquired hus- 
band would have been entitled to enjoy if it 
had not been previously destroyed by the 
tort. Wrightsville 8c T.R.R. v. Vaughan, 9 Ga. 
App. 371, 71 S.E. 691 (1911). 

Wife's loss of ability to perform house- 
keeping duties is recoverable by husband 
where they are living together. McBowman v. 
Merry, 104 Ga. App. 454, 122 S.E.2d 136 
(1961). 

Recovery against husband. — Under the 
statute law of Georgia a wife cannot recover 
from a husband with whom she is living in 
lawful wedlock, for a tort resulting from his 
negligent operation of an automobile in 
which they were riding at the time of the 
injury. Heyman v. Heyman, 19 Ga. App. 634, 
92 S.E. 25 (1917). 

Value of wife's services is a jury question 
to be estimated in the light of the evidence 
and their own observation and experience. 
Community Gas Co. v. Williams, 87 Ga. App. 
68, 73S.E.2d 119 (1952). 

Trial courts may instruct jury to consider 
mortality tables as to wife's life expectancy 
so as to ascertain what future medical ex- 
penses are reasonably certain to accrue as 
the natural and proximate result of her 
injuries, for which her husband is entitled to 
recover damages. Old Dominion Freight 
Line v. Martin, 153 Ga. App. 135, 264 S.E.2d 
585 (1980). 

Fundamental requirement relating to re- 
covery by mother for tortious injury to child 
is that mother be living apart from her 
husband. Peppers v. Smith, 151 Ga. App. 
680,261 S.E.2d427 (1979). 

Suit permitted by wife if husband aban- 
dons family. — Under this section a mother 
has a right of action for a tort which deprives 
a minor of his ability to render valuable 
services when the father has abandoned his 
family and all custody and control of the 
minor. Amos v. Atlanta Ry., 104 Ga. 809, 31 
S.E. 42 (1898). 

Where a father has lost his parental power, 
as in the case of abandonment, it is well 
settled that the mother rather than the 
father is entitled to bring an action for loss 
of services and for medical expenses result- 
ing from a tortious injury to the child, but 
this is not to say that the right of the mother 
to maintain an action is conditioned upon 



61 



51-1-11 



TORTS 



51-1-11 



the loss of parental power by the father. 
Peppers v. Smith, 151 Ga. App. 680, 261 
S.E.2d427 (1979). 

Abandonment not required. — Although 
abandonment of family by husband may 
satisfy language of this section, there is no 
independent requirement of abandonment 
contained in this section. Peppers v. Smith, 
151 Ga. App. 680, 261 S.E.2d 427 (1979). 



Cited in Sessions v. Parker, 174 Ga. 296, 
162 S.E. 790 (1932); McCallum v. Bryant, 93 
Ga. App. 214, 91 S.E.2d 194 (1956); Smith v. 
Tri-State Culvert Mfg. Co., 126 Ga. App. 508, 
191 S.E.2d 92 (1972); McDaniel v. Bliss, 156 
Ga. App. 166, 274 S.E.2d 138 (1980); Atlanta 
Cas. Co. v.Jones, 247 Ga. 238, 275 S.E.2d 328 
(1981); Chance v. Hanson, 160 Ga. App. 329, 
287S.E.2d57 (1981). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 41 Am. Jur. 2d, Husband 
and Wife, §§ 440-442. 

CJ.S. — 41 C.J.S., Husband and Wife, 
§§ 116,119. 

ALR. — Consent of husband to rendition 
of services by wife as prerequisite to her 
recovery therefor, 9 ALR 1303. 

Husband's right to damages for loss of 
consortium due to personal injury to wife, 
21 ALR 1517; 133 ALR 1156. 

Right of husband and wife to maintain 
joint action for wrongs directly affecting 
both arising from same act, 25 ALR 743. 

Judgment in action for damages on ac- 
count of injury to wife as bar to action for 
injury to self sustained in same accident and 
vice versa, 55 ALR 936. 

Husband's right to damages for loss of 
consortium due to personal injury to wife, 
133 ALR 1156. 

Spouse's cause of action for negligent 
personal injury as separate or community 
property, 35 ALR2d 1199. 

Right of wife to recover in individual 
capacity for medical expenses of husband 
injured by third person's negligence, 42 
ALR2d 843. 

What law governs the right of a tortiously 
injured married woman to sue in her own 



name and the ownership of the cause of 
action, 97 ALR2d 725. 

Judgment in spouse's action for personal 
injuries as binding, as regards loss of consor- 
tium and similar resulting damage, upon 
other spouse not a party to the action, 12 
ALR3d 933. 

Medical expenses due to injury to wife as 
recoverable by her or by husband, 21 ALR3d 
1113. 

Spouse's or parent's right to recover puni- 
tive damages in connection with recovery of 
damages for medical expenses or loss of 
services or consortium arising from personal 
injury to other spouse or to child, 25 ALR3d 
1416. 

Conflict of laws as to right of action for 
loss of consortium, 46 ALR3d 880. 

Validity of verdict or verdicts by same jury 
in personal injury action awarding damages 
to injured spouse but denying recovery to 
other spouse seeking collateral damages, or 
vice versa, 66 ALR3d 472. 

Measure and elements of damages in 
wife's action for loss of consortium, 74 
ALR3d 805. 

Injured party's release of tortfeasor as 
barring spouse's action for loss of consor- 
tium, 29ALR4th 1200. 



51-1-11. When privity required to support action; product liability action 
and time limitation therefor. 

(a) Except as otherwise provided in this Code section, no privity is 
necessary to support a tort action; but, if the tort results from the violation 
of a duty which is itself the consequence of a contract, the right of action is 
confined to the parties and those in privity to that contract, except in cases 
where the party would have a right of action for the injury done indepen- 
dently of the contract and except as provided in Code Section 11-2-318. 

(b) ( 1 ) The manufacturer of any personal property sold as new property 
directly or through a dealer or any other person shall be liable in tort, 



62 



51-1-11 GENERAL PROVISIONS 51-1-11 

irrespective of privity, to any natural person who may use, consume, or 
reasonably be affected by the property and who suffers injury to his 
person or property because the property when sold by the manufacturer 
was not merchantable and reasonably suited to the use intended, and its 
condition when sold is the proximate cause of the injury sustained. 

(2) No action shall be commenced pursuant to this subsection with 
respect to an injury after ten years from the date of the first sale for use 
or consumption of the personal property causing or otherwise bringing 
about the injury. 

(3) A manufacturer may not exclude or limit the operation of this 
subsection. 

(c) The limitation of paragraph (2) of subsection (b) of this Code 
section regarding bringing an action within ten years from the date of the 
first sale for use or consumption of personal property shall also apply to the 
commencement of an action claiming negligence of a manufacturer as the 
basis of liability, except an action seeking to recover from a manufacturer 
for injuries or damages arising out of the negligence of such manufacturer 
in manufacturing products which cause a disease or birth defect, or arising 
out of conduct which manifests a willful, reckless, or wanton disregard for 
life or property. Nothing contained in this subsection shall relieve a 
manufacturer from the duty to warn of a danger arising from use of a 
product once that danger becomes known to the manufacturer. (Orig. 
Code 1863, § 2899; Code 1868, § 2905; Code 1873, § 2956; Code 1882, 
§ 2956; Civil Code 1895, § 3812; Civil Code 1910, § 4408; Code 1933, 
§ 105-106; Ga. L. 1968, p. 1166, § 1; Ga. L. 1978, p. 2202, § 1; Ga. L. 1978, 
p. 2218, § 1; Ga. L. 1978, p. 2267, § 1; Ga. L. 1987, p. 613, § 1.) 

Cross references. — Reports of insurers tive products in accordance with reasonable 

authorized to transact product liability insur- human expectations, see 29 Mercer L. Rev. 

ance, § 33-3-22. 465 (1978). For article critically analyzing 

Law reviews. — For article, "Georgia's the distinction in theories of recovery of 
New Statutory Liability for Manufacturers: damages caused by defective products be- 
An Inadequate Legislative Response," see 2 tween personal injuries cases and economic 
Ga. L. Rev. 538 (1968). For article, "Products losses and suggesting a policy basis for de- 
Liability Law in Georgia: Is Change Com- ciding the latter, see 29 Mercer L. Rev. 493 
ing?," see 10 Ga. St. B.J. 353 (1974). For (1978). For article analyzing the roles of 
article discussing strict liability for defective court decisions and public regulation in 
products in Georgia, see 13 Ga. St. BJ. 142 preventing and redressing product defect 
(1977). For article discussing products liabil- injuries to children, see 29 Mercer L. Rev. 
ity and plaintiff's fault under the Uniform 523 (1978). For article discussing comment 
Comparative Fault Act, see 29 Mercer L. Rev. K of § 402A Restatement of Torts (Second) 
373 (1978). For article discussing plaintiff pertaining to unavoidably unsafe products 
conduct and the emerging doctrine of com- of societal benefit specifically in the drug 
parative causation of torts, see 29 Mercer L. and cosmetic field, see 29 Mercer L. Rev. 545 
Rev. 403 (1978). For article discussing the (1978). For article advocating repudiation of 
defenses to strict liability in tort, see 29 the patent danger rule as a manufacturer's 
Mercer L. Rev. 447 (1978). For article advo- defense to personal injury suits resulting 
eating imposition of strict liability for defec- from product defects, see 29 Mercer L. Rev. 

63 



51-1-11 



TORTS 



51-1-11 



583 (1978). For article discussing architect 
liability for product design and supervision 
of construction, and the statute of limita- 
tions, see 14 Ga. St. B.J. 164 (1978). For 
article discussing strict liability, see 17 Ga. St. 
BJ. 56 (1980). For article on the duty to 
warn users of products of product danger 
under § 51-1-11, see 18 Ga. St. BJ. 69 
(1981). For article surveying torts law, see 34 
Mercer L. Rev. 271 (1982). For article, "Stat- 
utes of Limitation: Counterproductive Com- 
plexities," see 37 Mercer L. Rev. 1 (1985). 
For article, "Federal Automotive Safety Stan- 
dards and Georgia Products Liability Law: 
Conflict or Coexistence?," see 26 Ga. St. B.J. 
107 (1990). For article, "Products Liability 
Law in Georgia Including Recent Develop- 
ments," see 43 Mercer L. Rev. 27 (1991). For 
annual survey article on tort law, see 50 
Mercer L. Rev. 335 (1998). 

For note, "Products Liability in Georgia," 
see 12 Ga. L. Rev. 83 (1977). For note 
discussing admissibility of automobile recall 
letters as proof of defect in products liability 
case, see 29 Mercer L. Rev. 611 (1978). For 
note discussing various state legislature's en- 
actments restricting manufacturer's liability 
for injury resulting from product defects, see 
29 Mercer L. Rev. 619 (1978). For note, 
"Subsequent Remedial Measures in a Prod- 
uct Liability Case: The Fastest Spinning 
Wheel in Litigation," see 19 Ga. St. BJ. 89 
(1982). For note, "Ogletree v. Navistar Inter- 
national Transportation Corp.: The Demise 
of the 'Open and Obvious Danger' De- 
fense," see 50 Mercer L. Rev. 643 (1999). 



For comment on Eades v. Spencer-Adams 
Paint Co., 82 Ga. App. 123, 60 S.E.2d 543 
(1950), see 13 Ga. BJ. 343 (1951). For 
comment criticizing former privity restric- 
tions in product liability suits in light of 
Revlon, Inc. v. Murdock, 103 Ga. App. 842, 
120 S.E.2d 912 (1961), see 13 Mercer L. Rev. 
425 (1962) (decided under former Code 
1933 § 96-301). For comment on Capital 
Auto. Co. v. Shinall, 103 Ga. App. 695, 120 
S.E.2d 351 (1961), see 14 Mercer L. Rev. 454 
(1963). For comment on Putnam v. Erie City 
Mfg. Co., 338 F.2d 911 (5th Cir. 1964), as to 
privity requirement in implied warranty ac- 
tions, see 17 Mercer L. Rev. 318 (1965). For 
comment on Fender v. Colonial Stores, Inc., 
138 Ga. App. 31, 225 S.E.2d 691 (1976), see 
28 Mercer L. Rev. 751 (1977). For comment 
discussing the prohibition of wrongful death 
suits under Georgia's strict liability in Ford 
Motor Co. v. Carter, 239 Ga. 657, 238 S.E.2d 
361 (1977), see 29 Mercer L. Rev. 649 
(1978). For comment, "Strict Liability Ac- 
tions — Which Statute of Limitations?" See 
31 Mercer L. Rev. 773 (1980). For comment, 
"Proposed Solutions to an 'Obvious' Prob- 
lem in Georgia Products Liability Law," see 
35 Mercer L. Rev. 915 (1984). For comment 
discussing the applicability of Federal Rule 
of Evidence 407 to exclude evidence of 
subsequent remedial measures in products 
liability actions, see 35 Mercer L. Rev. 1389 
(1984). For comment, "Medical Expert Sys- 
tems and Publisher Liability: A 
Cross-Contextual Analysis," see 43 Emory 
L.J. 731 (1994). 



JUDICIAL DECISIONS 



Analysis 



General Consideration 
Privity as Element of Action 

1. In General 

2. Applicability to Specific Cases 
Products Liability 

1. In General 

2. Legislative Intent 

3. Definitions 

4. Applicability of Subsection (b) 

5. Design Defect Cases 

6. Strict Liability 

7. Pleading and Practice 

8. Defenses 

9. Jury Questions 



64 



51-1-11 



GENERAL PROVISIONS 



51-1-11 



General Consideration 

Constitutionality. — The ten-year statute 
of repose barring strict product liability ac- 
tions and applying to negligent product lia- 
bility actions is not an unconstitutional de- 
nial of equal protection or access to the 
courts, nor does this section violate the 
one-subject matter limitation of the state 
constitution. Love v. Whirlpool Corp., 264 
Ga. 701, 449 S.E.2d 602 (1994). 

Cited in Reddick v. White Consol. Indus., 
Inc., 295 F. Supp. 243 (S.D. Ga. 1968); 
Standard v. Meadors, 347 F. Supp. 908 (N.D. 
Ga. 1972); Stewart v. Gainesville Glass Co., 
131 Ga. App. 747, 206 S.E.2d 857 (1974); 
Long v. Jim Letts Oldsmobile, Inc., 135 Ga. 
App. 293, 217 S.E.2d 602 (1975); Davis v. Fox 
Pool Corp., 136 Ga. App. 381, 221 S.E.2d 484 
(1975); Fender v. Colonial Stores, 138 Ga. 
App. 31, 225 S.E.2d 691 (1976); Ford Motor 
Co. v. Lee, 237 Ga. 554, 229 S.E.2d 379 
(1976); Cobb Heating 8c Air Conditioning 
Co. v. Hertron Chem. Co., 139 Ga. App. 803, 
229 S.E.2d 681 (1976); Dodge Trucks, Inc. v. 
Wilson, 140 Ga. App. 743, 231 S.E.2d 818 
(1976); Lairsey v. Advance Abrasives Co., 542 
F.2d 928 (5th Cir. 1976); Beam v. Omark 
Indus., 143 Ga. App. 142, 237 S.E.2d 607 
(1977); Patent Scaffolding Co. v. Etheridge, 
143 Ga. App. 795, 240 S.E.2d 610 (1977); 
Vance v. Miller-Taylor Shoe Co., 147 Ga. 
App. 812, 251 S.E.2d 52 (1978); Wansor v. 
George Hantscho Co., 580 F.2d 726 (5th Cir. 
1978); Firestone Tire 8c Rubber Co. v. Hall, 
152 Ga. App. 560, 263 S.E.2d 449 (1979); 
Tolar Constr. Co. v. GAF Corp., 154 Ga. App. 
127, 267 S.E.2d 635 (1980); Daugherty v. 
Firestone Tire 8c Rubber Co., 85 F.R.D. 693 
(N.D. Ga. 1980); Lang v. Federated Dep't 
Stores, Inc., 161 Ga. App. 760, 287 S.E.2d 
729 (1982); Buchanan v. Georgia Boy Pest 
Control Co., 161 Ga. App. 301, 287 S.E.2d 
752 (1982); Brooks v. Douglas, 163 Ga. App. 
224, 292 S.E.2d 911 (1982); Starling v. Sea- 
board Coast Line R.R., 533 F. Supp. 183 
(S.D. Ga. 1982); Beauchamp v. Russell, 547 
F. Supp. 1191 (N.D. Ga. 1982); Whirlpool 
Corp. v. Hurlbut, 166 Ga. App. 95, 303 
S.E.2d 284 (1983); Abee v. Stone Mt. Mem. 
Ass'n, 169 Ga. App. 167, 312 S.E.2d 142 
(1983); Lodge v. Champion Home Bldrs. 
Co., 170 Ga. App. 21, 315 S.E.2d 912 (1984); 
Ford Motor Co. v. Stubblefield, 171 Ga. App. 
331, 319 S.E.2d 470 (1984); Lorentzson v. 
Rowell, 171 Ga. App. 821, 321 S.E.2d 341 



(1984); Mann v. Coast Catamaran Corp., 254 
Ga. 201, 326 S.E.2d 436 (1985); Folsom v. 
Sears, Roebuck & Co., 174 Ga. App. 46, 329 
S.E.2d 217 (1985); American Living Sys. v. 
Bonapfel (In re All Am. of Ashburn, Inc.), 
56 Bankr. 186 (Bankr. N.D. Ga.), aff'd, 805 
F.2d 1515 (11th Cir. 1986); Westinghouse 
Elec. Corp. v. Williams, 183 Ga. App. 845, 
360 S.E.2d 411 (1987); Continental Corp. v. 
DOT, 185 Ga. App. 792, 366 S.E.2d 160 
(1988); Adair v. Baker Bros., 185 Ga. App. 
807, 366 S.E.2d 164 (1988); White v. W.G.M. 
Safety Corp., 707 F. Supp. 544 (S.D. Ga. 
1988); Browning v. Maytag Corp., 932 F.2d 
1409 (11th Cir. 1991); Samuelson v. Lord, 
Aeck 8c Sergeant, Inc., 205 Ga. App. 568, 423 
S.E.2d 268 (1992); Wright v. Osmose Wood 
Preserving, Inc., 206 Ga. App. 685, 426 
S.E.2d 214 (1992); United States Fid. 8c 
Guar. Co. v. J.I. Case Co., 209 Ga. App. 61, 
432 S.E.2d 654 (1993); Lamb ex rel. Shepard 
v. Sears, Roebuck & Co., 1 F.3d 1184 (11th 
Cir. 1993); DeLoach v. Rovema Corp., 241 
Ga. App. 802, 527 S.E.2d 882 (2000). 

Privity as Element of Action 

1. In General 

Subsection (a) is a codification of the 
common law. Moody v. Martin Motor Co., 76 
Ga. App. 456, 46 S.E.2d 197 (1948). 

Subsection (a) allows an action in tort 
without the necessity of privity. Whi taker v. 
Harvell-Kilgore Corp., 418 F.2d 1010 (5th 
Cir. 1969); Lashley v. Ford Motor Co., 359 F. 
Supp. 363 (M.D. Ga. 1972), aff'd, 480 F.2d 
158 (5th Cir.) cert, denied, 414 U.S. 1072, 94 
S. Ct. 585, 38 L. Ed. 2d 478 (1973). 

Subsection (a) purportedly limits the right 
of tort action based on the violation of a 
duty, itself the consequence of a contract, to 
a party or privy, except in cases where the 
party would have had a right of action for 
the injury done, independently of the con- 
tract or in cases covered by § 1 1-2-318 of the 
Uniform Commercial Code extending the 
benefit of express or implied warranties to 
certain natural persons without regard to 
privity. Koppers Co. v. Parks, 120 Ga. App. 
551, 171 S.E.2d 639 (1969); Shell v. Watts, 
125 Ga. App. 542, 188 S.E.2d 269, rev'd on 
other grounds, 229 Ga. 474, 192 S.E.2d 265 
(1972). 

The rule of privity in contract actions is 
made a statutory requirement by subsection 



65 



51-1-11 



TORTS 



51-1-11 



Privity as Element of Action (Cont'd) 
1. In General (Cont'd) 

(a). — In actions based upon the breach of 
express or implied warranties this require- 
ment is subject only to the exception con- 
tained in § 11-2-318. Ellis v. Rich's, Inc., 233 
Ga. 573, 212 S.E.2d 373 (1975). 

Duty of care may be called for by contract 
and by tort law at same time, and where this 
is true plaintiff requires no privity to main- 
tain tort action. Sims v. American Cas. Co., 
131 Ga. App. 461, 206 S.E.2d 121, aff'd sub 
nom. Providence Wash. Ins. Co. v. Sims, 232 
Ga. 787, 209 S.E.2d 61 (1974). 

Parties to contract not necessarily con- 
fined to contractual remedies. — Where the 
petition was one in tort for a negligent injury 
committed upon the property of the joint 
plaintiffs, the right of action was not con- 
fined to the parties to the contract, the 
negligent performance of which resulted in 
the injury to plaintiffs' property, since the 
right of action for the injury done inhered 
in the owners of the property independently 
of any obligation imposed by the contract. 
Monroe v. Guess, 41 Ga. App. 697, 154 S.E. 
301 (1930). 

The mere fact that the right or privilege of 
one which has been violated was acquired by 
virtue of a contact does not confine actions 
for the violation of the right to parties and 
privies to the contract. University Apts., Inc. 
v. Uhler, 84 Ga. App. 720, 67 S.E.2d 201 
(1951). 

Party to contract may maintain suit in tort 
with nonparty. — The fact that one of the 
plaintiffs may have been a party to the 
contract, the negligent performance of 
which caused the injury, would not prevent a 
joint action by both of the owners of the 
damaged property for the tortious injury to 
their property independent of the contract, 
since independently of any duty under the 
contract, the law imposed upon the defen- 
dant the duty not to negligently and wrong- 
fully injure and damage the property of 
another. Monroe v. Guess, 41 Ga. App. 697, 
154 S.E. 301 (1930). 

Action in tort cannot be maintained by 
third person not privy to the contract for 
breach of warranty which constitutes a mere 
contractual obligation between the defen- 
dant and the other contracting parties. 
Hand v. Harrison, 99 Ga. App. 429, 108 
S.E.2d814 (1959). 



Since the provisions in an ordinance 
granting a power company the right to erect 
its lines along the public streets are contrac- 
tual between the city and the power com- 
pany, a breach of them would give rise to a 
cause of action between them only, unless it 
appears that the plaintiff injured would have 
a right of action for his injury independendy 
of the contract. Crosby v. Savannah Elec. & 
Power Co., 114 Ga. App. 193, 150 S.E.2d 563 
(1966). 

No rights arise by indirect contract rela- 
tion. — One person cannot maintain an 
action against another under this section for 
an injury to a third person on the ground 
that the wrong has also indirecdy injured the 
plaintiff by reason of his contractual rela- 
tions with the third person. Kokomo Rubber 
Co. v. Anderson, 33 Ga. App. 241, 125 S.E. 
783 (1924); East Tenn., V. & Ga. Ry. v. 
Herrman & Bros., 92 Ga. 384, 17 S.E. 344 
(1893); Strachan Shipping Co. v. 
Hazlip-Hood Cotton Co., 35 Ga. App. 94, 
132 S.E. 454 (1926); King Hdwe. Co. v. 
Ennis, 39 Ga. App. 355, 147 S.E. 119 (1929); 
Dale Elec. Co. v. Thurston, 82 Ga. App. 516, 
61 S.E.2d 584 (1950); Stuart v. Berry, 107 Ga. 
App. 531, 130 S.E.2d 838 (1963); Hayes v. 
Century 21 Shows, Inc., 116 Ga. App. 490, 
157 S.E.2d 779 (1967); Shellenberger v. Tan- 
ner, 138 Ga. App. 399, 227 S.E.2d 266 
(1976); Sawyer v. Allison, 151 Ga. App. 334, 
259 S.E.2d 721 (1979); Georgia-Carolina 
Brick 8c Tile Co. v. Brown, 153 Ga. App. 747, 
266S.E.2d531 (1980). 

Corporations not affected by abolition of 
privity requirement. — Although the re- 
quirement of privity has been abolished for 
tort actions and actions against manufactur- 
ers of defective products brought by "any 
natural person ...", no such change has 
been effected as to corporations damaged by 
defective products. Chem Tech Finishers, 
Inc. v. Paul Mueller Co., 189 Ga. App. 433, 
375S.E.2d881 (1988). 

Buyer corporation may be liable for torts 
of seller corporation. — When a corpora- 
tion that has manufactured a product is 
purchased by another corporation, the pur- 
chaser may be held liable for the torts of the 
seller under certain circumstances. Corbin v. 
Farmex, Inc., 227 Ga. App. 620, 490 S.E.2d 
395 (1997), rev'd on other grounds sub 
nom. Farmex Inc. v. Wainwright, 269 Ga. 
548, 501 S.E.2d 802 ( 1 998) , vacated on other 



66 



51-1-11 



GENERAL PROVISIONS 



51-1-11 



grounds, 234 Ga. App. 180, 506 S.E.2d 406 
(1998). 

Policy considerations may override privity 
requirements. — An exception to the rigid 
privity requirement will be implied where 
policy considerations weigh in favor of liabil- 
ity. Gulf Contracting v. Bibb County, 795 F.2d 
980 (11th Cir. 1986). 

Third party not in privity cannot rely on 
professional duty which might give rise to a 
negligence action had the injured party 
been in privity. Kaiser Aluminum & Chem. 
Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60 
(S.D. Ga. 1981). 

Party not in privity subject to action for 
procuring breach of contract. — Person not 
party to contract may procure, without justi- 
fication, its breach, and be liable therefor in 
tort; the mere failure of a party to a contract 
to carry out its terms will not give rise to a 
cause of action ex delicto in favor of a third 
person who has contracted with the opposite 
party to such contract, although in breach- 
ing the contract the party so failing may be 
charged with notice that the opposite party 
will not be able to perform its contract with 
such third person. First Mtg. Corp. v. Felker, 
158 Ga. App. 14, 279 S.E.2d 451 (1981). 

Liability for negligent misrepresentations 
by persons rendering professional services is 
limited to a foreseeable person or limited 
class of persons for whom the information 
was intended and who can show reasonable 
reliance on the false information, specifi- 
cally that the information was given for the 
purpose of inducing their reliance. Gulf 
Contracting v. Bibb County, 795 F.2d 980 
(11th Cir. 1986). 

An exception to the privity requirement 
has been recognized in cases of negligent 
misrepresentation by a professional, reason- 
ably relied upon by a foreseeable person or 
class of person. However, no similar excep- 
tion has been carved out for a professional's 
alleged negligent failure to supervise a 
project. Wood Bros. Constr. Co. v. 
Simons-Eastern Co., 193 Ga. App. 874, 389 
S.E.2d 382 (1989). 

2. Applicability to Specific Cases 

No recovery for economic loss. — If there 
exists no accident, and no physical damage 
to other property, and the only loss is a 
pecuniary one, through loss of the value or 
use of the thing sold, or the cost of repairing 



or modifying it, the court adhere to the rule 
that purely economic interests are not enti- 
ded to protection against mere negligence, 
and accordingly deny recovery. Bates & 
Assocs. v. Romei, 207 Ga. App. 81, 426 S.E.2d 
919 (1993). 

Only parties to contract of shipment may 
sue upon negligent performance. — Where 
the complaint is grounded upon negligence 
in performance of the duties imposed by a 
contract of shipment, and therefore, while 
not based upon the contract, but in tort, is 
necessarily founded and grounded upon the 
obligations assumed under the specific con- 
tract by the contracting parties thereto, the 
maker of the contract is the one to complain 
of negligence in its performance rather than 
some other person not a party to the agree- 
ment. Black v. Southern Ry, 48 Ga. App. 
445, 173 S.E. 199 (1934). 

Consignee of goods under bill of lading 
cannot maintain tort action without an inter- 
est in goods consigned. — A consignee who 
actually is without any special or general 
property in goods consigned to him, and 
who therefore incurs no risk from their 
transportation, cannot maintain against the 
carrier an action ex delicto for loss or dam- 
age to the goods in transit. Black v. Southern 
Ry., 48 Ga. App. 445, 173 S.E. 199 (1934). 

Consignee's ownership interest rebuttably 
presumed. — The consignee of property 
delivered by another to a common carrier 
for shipment is presumed to be the owner, 
and presumptively a right of action exists in 
his favor for any injury or damage to the 
property in transit. This presumption, how- 
ever, may be rebutted, and, where success- 
fully done, the consignee cannot maintain 
an action ex delicto for the loss of or for any 
damage to the property. Black v. Southern 
Ry., 48 Ga. App. 445, 173 S.E. 199 (1934). 

Consignee with special interest may sue 
even though not general owner. — Though 
the consignee may not be the real owner, if 
he has a special interest in the property 
shipped, he may maintain action for the loss, 
or for any damage to such property in 
transit, and in such action may have a recov- 
ery of the full value of the property where 
lost, or full amount of damages to the prop- 
erty where it is injured. The ownership may 
not be extensive, and an agent, factor, bro- 
ker, bailee, or other person having rights in 
the property to be protected may maintain 



67 



51-1-11 



TORTS 



51-1-11 



Privity as Element of Action (Cont'd) 

2. Applicability to Specific Cases (Cont'd) 

an action, and recover both for himself and 
the general owner. Black v. Southern Ry., 48 
Ga. App. 445, 173 S.E. 199 (1934). 

Employees of purchaser do not have 
privity with manufacturer. Watkins v. 
Barber-Colman Co., 625 F.2d 714 (5th Cir. 
1980). 

Independent contractor owes an original 
duty not to endanger lives and limbs of 
others by negligent performance of con- 
tract, when the consequences of such con- 
duct may be foreseen; trial court erred in 
granting motion to dismiss when defendant 
garageman failed to repair brakes on plain- 
tiff's employer's truck, leading to plaintiff's 
injury. Moody v. Martin Motor Co., 76 Ga. 
App. 456, 46 S.E.2d 197 (1948). 

An independent contractor may be liable 
to third person after contractor has com- 
pleted work where completed work product 
is inherently or intrinsically dangerous or so 
defective as to be imminently dangerous to 
third persons. This exception applies as be- 
tween a designing engineer of a roof and a 
tenant who was damaged when the roof 
collapsed. Welding Prods, v. S.D. Mullins 
Co., 127 Ga. App. 474, 193 S.E.2d 881 
(1972). 

Landlord's duty not to willfully disturb 
possession rights not merely contractual 
duty. — Duty on the part of the landlord not 
to willfully interfere with the plaintiff's right 
to occupy the apartment which she had a 
right to do in the right of her husband and 
not to interfere with her access to her cloth- 
ing were not duties arising out of the con- 
tract of rental; they were duties owed by all 
persons to all persons, and the cause of 
action would have existed if there had been 
no contract of rental between the parties. 
University Apts., Inc. v. Uhler, 84 Ga. App. 
720, 67S.E.2d 201 (1951). 

Telegraph company liable though privity 
absent. — Privity of contract is not required 
where one sues a telegraph company for 
failure to transmit and deliver a message. 
Conyers v. Postal Tel. Cable Co., 92 Ga. 619, 
19 S.E. 253, 44 Am. St. R. 100 (1893). 

Architects and engineers liable for defects 
in plans relied on by those bidding for 
contract. — Where defendants negligently 
failed to disclose the remaining subsurface 



debris in specifications, plans, drawings, 
plats, and surveys describing a construction 
job that they prepared as architects and 
engineers, , those specifications were obvi- 
ously prepared for a limited class of persons, 
namely firms bidding for contracts to build 
all or a portion of the job and reliance on 
the specifications and other materials by 
such persons was also reasonable because 
the information therein was vital to the 
bidding process, defendants could be liable 
to third parties such as the low bidder on the 
job for their failure to adequately describe 
construction requirements through their 
specifications and materials. Gulf Contract- 
ing v. Bibb County, 795 F.2d 980 (11th Cir. 
1986). 

Relationship between architectural firm 
and supplier and installer of materials. — An 
architectural firm which entered a contract 
with a store to design a renovation owed no 
duty of care, as a professional, to the com- 
pany hired to install the tile or to the com- 
pany which supplied the tile, which turned 
out to be defective, where there was no 
professional relationship existing between 
them nor any relationship approaching that 
of privity. R.H. Macy 8c Co. v. Williams Tile & 
Terrazzo Co., 585 F. Supp. 175 (N.D. Ga. 
1984). 

Products Liability 

1. In General 

"Third-party tort-feasor" construed. — A 

products liability claim pursuant to this sec- 
tion, against a general contractor in its ca- 
pacity as designer and manufacturer of a 
new paper-making process, as opposed to its 
capacity as statutory employer, is not an 
action against a "third-party tort-feasor" 
which avoids the immunity provided under 
§ 34-9-11. Porter v. Beloit Corp., 194 Ga. 
App. 591, 391 S.E.2d 430 (1990). 

Implied warranty of merchantability dis- 
tinguished. — Establishment of the implied 
warranty of merchantability as applied to a 
seller under § 11-2-314 is not the same as the 
strict liability imposed on a manufacturer 
under this section. Buford v. Toys R' Us, Inc., 
217 Ga. App. 565, 458 S.E.2d 373 (1995). 

Removal to federal court. — In an action 
against cigarette manufacturers and retail 
sellers, there was no possibility plaintiff 
could recover against the retail defendants 



68 



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51-M1 



who were added to defeat diversity jurisdic- 
tion and, thus, plaintiff's motion to remand 
after the manufacturers moved the action to 
federal court should be denied. Crooke v. 
RJ. Reynolds Tobacco Co., 978 F. Supp. 1482 
(N.D. Ga. 1997). 

The requirement for an expert affidavit 
did not apply to a strict products liability 
action against a manufacturer. SK Hand 
Tool Corp. v. Lowman, 223 Ga. App. 712, 
479S.E.2d 103 (1996). 

Subsection (b) imposes strict liability for 
defective products. — Center Chem. Co. v. 
Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975); 
Mike Bajalia, Inc. v. Amos Constr. Co., 142 
Ga. App. 225, 235 S.E.2d 664 (1977); Wansor 
v. George Hantscho Co., 570 F.2d 1202 (5th 
Cir.), cert, denied, 439 U.S. 953, 99 S. Ct. 
350, 58 L. Ed. 2d 344 (1978). 

Subsection (b) does not attach condition 
that defective product must be "unreason- 
ably dangerous." Center Chem. Co. v. 
Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975). 

Subsection (b) does not make manufac- 
turer strictly liable for dangerous product 
absent a defect. Center Chem. Co. v. Parzini, 
234 Ga. 868, 218 S.E.2d 580 (1975). 

Strict liability applied only to manufactur- 
ers. — These legislative enactments pre- 
clude any extension of strict liability by this 
court to parties other than the manufac- 
turer. Ellis v. Rich's, Inc., 233 Ga. 573, 212 
S.E.2d373 (1975). 

A strict liability claim lies only against the 
manufacturer and not against the mere 
owner of a product. Williams v. City Ice Co., 
190 Ga. App. 744, 380 S.E.2d 341 (1989). 

Strict liability through implied warranty of 
fitness is not applicable to providers of 
service. — Any imposition of strict liability 
through an implied warranty of fitness is 
applicable by statute to the manufacturers of 
new products, but is not applicable to the 
providers of services. Seaboard Coast Line 
R.R. v. Mobil Chem. Co., 172 Ga. App. 543, 
323S.E.2d849 (1984). 

Subsection (b) imposes tort liability under 
a breach of contract standard. 
Higginbotham v. Ford Motor Co., 540 F.2d 
762 (5th Cir. 1976). 

In contradistinction to law of negligence, 
law of warranty assigns liability on basis of 
product's lack of fitness; when machinery 
"malfunctions," it obviously lacks fitness re- 
gardless of the cause of the malfunction. 



Lashley v. Ford Motor Co., 359 F. Supp. 363 
(M.D. Ga. 1972), aff'd, 480 F.2d 158 (5th 
Cir.), cert, denied, 414 U.S. 1072, 94 S. Ct. 
585, 38 L. Ed. 2d 478 (1973). 

Subsection (b) is directed to the manufac- 
turer of any personal property sold as new 
property and not to the distributor. See Ellis 
v. Rich's, Inc., 132 Ga. App. 430, 208 S.E.2d 
331 (1974), aff'd, 233 Ga. 573, 212 S.E.2d 
373 (1975); Wansor v. George Hantscho Co., 
243 Ga. 91, 252 S.E.2d 623 (1979); Holman 
Motor Co. v. Evans, 169 Ga. App. 610, 314 
S.E.2d 453 (1984); Hatcher v. Allied Prods. 
Corp., 256 Ga. 100, 344 S.E.2d 418 (1986); 
English v. Crenshaw Supply Co., 193 Ga. 
App. 354, 387 S.E.2d 628 (1989); Wheat v. 
Sofamor, S.N.C., 46 F. Supp. 2d 1351 (N.D. 
Ga. 1999). 

Subsection (b) creates liability only in 
cases of personal property sold after 1968. 
Watkins v. Barber-Colman Co., 625 F.2d 714 
(5th Cir. 1980). 

Subsection (b), by its specified terms, runs 
to the benefit of natural persons only. Amer- 
ican San. Servs. v. EDM of Tex., Inc., 139 Ga. 
App. 662, 229 S.E.2d 136 (1976); Mike 
Bajalia, Inc. v. Amos Constr. Co., 142 Ga. 
App. 225, 235 S.E.2d 664 (1977); A.J. Kellos 
Constr. Co. v. Balboa Ins. Co., 495 F. Supp. 
408 (S.D. Ga. 1980). 

Subsection (b) not retroactively applied. 
— The provisions of subsection (b) create a 
new cause of action which is in derogation of 
the common law, and it follows that under 
§ 1-3-5, which forbids the retroactive appli- 
cation of laws, this statute may not be given 
retroactive effect. Wansor v. George 
Hantscho Co., 243 Ga. 91, 252 S.E.2d 623 
(1979). 

Subsection (b) should be strictly con- 
strued because it is in derogation of com- 
mon law. Colt Indus. Operating Corp. v. 
Coleman, 246 Ga. 559, 272 S.E.2d 251 
(1980); Stiltjes v. Ridco Exterminating Co., 
178 Ga. App. 438, 343 S.E.2d 715, aff'd, 256 
Ga. 255, 347 S.E.2d 568 (1986). 

Subsection (b) is in derogation of com- 
mon law and must be strictly construed or 
limited stricdy to the meaning of the lan- 
guage employed and not extended beyond 
plain and explicit terms. Daniel v. American 
Optical Corp., 251 Ga. 166, 304 S.E.2d 383 
(1983). 

Georgia's strict liability doctrine is legisla- 
tively enacted, and it will be strictly con- 



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Products Liability (Cont'd) 
1. In General (Cont'd) 

strued. Robert F. Bullock, Inc. v. Thorpe, 256 
Ga. 744, 353 S.E.2d 340 (1987). 

When a product is sold to a particular 
group or profession, a manufacturer has no 
duty to warn against the risks generally 
known to that group or profession. Argo v. 
Perfection Prods. Co., 730 F. Supp. 1109 
(N.D. Ga. 1989), aff'd, 935 F.2d 1295 (11th 
Cir. 1991). 

Failure to warn may constitute defect. — 
A manufacturer's failure to warn of the 
dangers in using a product may constitute a 
defect in the product for purposes of strict 
liability. Pepper v. Selig Chem. Indus., 161 
Ga. App. 548, 288 S.E.2d 693 (1982). 

Absence of safety device. — A product is 
not rendered defective by the patent ab- 
sence of a specific safety device which would 
serve to guard against a common danger 
connected with the limited use of a product, 
which danger the ultimate user can himself 
recognize and otherwise guard against. 
Fortner v. W.C. Cayne & Co., 184 Ga. App. 
187, 360 S.E.2d 920 (1987). 

Absence of passive restraints or air bags in 
an automobile could not be considered a 
defective condition so as to establish a 
breach of duty on the part of the manufac- 
turer. Honda Motor Co. v. Kimbrel, 189 Ga. 
App. 414, 376 S.E.2d 379 (1988). 

Safety belts rather than airbags in automo- 
biles would not be a defect within the mean- 
ing of this section. Honda Motor Co. v. 
Kimbrel, 189 Ga. App. 414, 376 S.E.2d 379 
(1988). 

Doctrine of attractive nuisance by its terms 
applies only against a possessor of land; and 
thus it would appear to be inherendy inap- 
plicable to product liability cases. Greenway 
v. Peabody Int'l Corp., 163 Ga. App. 698, 294 
S.E.2d 541 (1982). 

Product defectively designed. — In deter- 
mining whether a product was defectively 
designed, the trier of fact may consider 
evidence establishing that at the time the 
product was manufactured, an alternative 
design would have made the product safer 
than the original design and was a market- 
able reality and technologically feasible. 
Banks v. ICI Americas, Inc., 264 Ga. 732, 450 
S.E.2d671 (1994). 

In a products liability action arising from 



the death of a nine-year-old child who died 
after eating rat poison thinking it was candy, 
a risk-utility analysis should have been ap- 
plied in determining whether the design of 
the rodenticide was defective. Banks v. ICI 
Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 
(1994). 

Plaintiff failed to prove defective product 
design. — In an action arising from the 
crash of a helicopter, because plaintiff failed 
to show that the crash was proximately 
caused by a defect in the helicopter and to 
rebut the manufacturer's argument that the 
cause was the failure to have an inlet screen 
in place, plaintiff's claim failed as a matter of 
law. Carmical v. Bell Helicopter Textron, 
Inc., 117 F.3d 490 (11th Cir. 1997). 

2. Legislative Intent 

Public policy on product liability. — This 
section as well as § 11-2-318 are recent ex- 
pressions of the legislature establishing but 
also limiting the public policy of this state in 
the area of product liability. Ellis v. Rich's 
Inc., 233 Ga. 573, 212 S.E.2d 373 (1975). 

Intent to exclude builders of real property 
from product liability law. — It was the 
intention of the legislature in using the 
phrase "personal property" to eliminate 
from the operation of the statute the sale of 
buildings by those who might with respect to 
them be regarded as manufacturers, and 
thereby to retain with respect to the sale of 
real property the rules requiring fraud to 
overcome the normal rule of caveat emptor. 
Garrett v. Panacon Corp., 130 Ga. App. 641, 
204S.E.2d354 (1974). 

3. Definitions 

Loss of bargain not "injury" within sub- 
section (b). — An "injury," within the strict 
liability context of subsection (b) does not 
include damages stemming from loss of the 
benefit of one's bargain. The history of the 
doctrine of strict liability in tort indicates 
that it was designed to govern the distinct 
problem of physical injuries. Chrysler Corp. 
v. Taylor, 141 Ga. App. 671, 234 S.E.2d 123 
(1977). 

Electricity is a "product" within the mean- 
ing of subsection (b). Monroe v. Savannah 
Elec. 8c Power Co., 267 Ga. 26, 471 S.E.2d 
854 (1996). 

"Manufacturer" defined. — An entity 
which assembles component parts and sells 



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GENERAL PROVISIONS 



51-1-11 



them as a single product under its trade 
name is a "manufacturer" within the mean- 
ing of this section. Pierce v. Liberty Furn. 
Co., 141 Ga. App. 175, 233 S.E.2d 33 (1977). 

A corporation which engaged another cor- 
poration to construct a prototype of a par- 
ticular machine, which inspected the ma- 
chine and offered suggestions for 
improvements, but which did not actually 
design or build the machine, did not assem- 
ble any component parts into a single prod- 
uct, nor sell or represent the machine as its 
own product, was not the "manufacturer" of 
the machine, such as to make it liable when 
it allowed an employer to use the machine 
and an employee was injured. Morgan v. 
Mar-Bel, Inc., 614 F. Supp. 438 (N.D. Ga. 
1985). 

Where an installer did not sell either a 
vehicle or an auger under its own trade 
name, the trial court correctly determined 
as a matter of law that the installer was not a 
"manufacturer" of the equipment within 
the meaning of subsection (b) ( 1 ) and thus 
could not be held stricdy liable for its per- 
formance. Yaeger v. Stith Equip. Co., 185 Ga. 
App. 315, 364 S.E.2d 48, cert, denied, 185 
Ga. App. 911, 364 S.E.2d 48 (1987). 

A retailer which affixed its label to a 
nightgown manufactured by another firm 
was the ostensible "manufacturer" of the 
product, and therefore subject to liability 
under this Code section. Morgan v. Sears, 
Roebuck 8c Co., 693 F. Supp. 1154 (N.D. Ga. 
1988); Morgan v. Sears, Roebuck 8c Co., 700 
F. Supp. 1574 (N.D. Ga. 1988). 

Soft drink franchisor, who manufactured 
and sold syrup to licensed bottling compa- 
nies who then mixed it with other ingredi- 
ents, was not liable as a "manufacturer" of 
the finished beverage product, which was 
sold by the botders for their accounts. Tyler 
v. Pepsico, Inc., 198 Ga. App. 223, 400 S.E.2d 
673 (1990), cert, denied, 198 Ga. App. 899, 
400S.E.2d673 (1991). 

"Not merchantable" defined. — The term 
"not merchantable and reasonably suited 
for the use intended," under subsection (b) 
means that the manufacturer's product 
when sold by the manufacturer was defec- 
tive. A defective condition obtains only when 
the product is, at the time it leaves the 
seller's hands, in a condition not contem- 
plated by the ultimate consumer. Center 
Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 



580 (1975); Hunt v. Harley-Davidson Motor 
Co., 147 Ga. App. 44, 248 S.E.2d 15 (1978). 

The term "not merchantable and reason- 
ably suited to the use intended" as used in 
this section means "defective." Giordano v. 
Ford Motor Co., 165 Ga. App. 644, 299 
S.E.2d 897 (1983). 

"Personal property" defined. — The des- 
ignation "personal property" as used in 
subsection (b) includes all items manufac- 
tured as personal property regardless of 
whether such item has been affixed to or 
incorporated into real property after manu- 
facture. Garrett v. Panacon Corp., 130 Ga. 
App. 641, 204 S.E.2d 354 (1974). 

There is no reason for distinguishing be- 
tween product itself and container in which 
it is supplied. Center Chem. Co. v. Parzini, 
234 Ga. 868, 218 S.E.2d 580 (1975). 

Stream of commerce — A sale is not an 
absolute prerequisite to a finding that a 
product has been placed in the stream of 
commerce for purposes of subsection (b). 
Monroe v. Savannah Elec. & Power Co., 267 
Ga. 26, 471 S.E.2d 854 (1996). 

In determining whether electricity had 
been placed in the stream of commerce for 
purposes of strict liability, the relinquish- 
ment of control over the electricity and/or 
the marketable condition of that electricity 
were essential factors. Monroe v. Savannah 
Elec. & Power Co., 267 Ga. 26, 471 S.E.2d 
854 (1996). 

Supply of blood by hospital not sale of 
property within subsection (b). — Hospitals 
supplying blood to patients do so as part of 
the rendering of medical "services," rather 
than as a "sale" of blood, and thus only 
negligence and not strict products liability is 
available to the injured patient. McAllister v. 
American Nat'l Red Cross, 240 Ga. 246, 240 
S.E.2d247 (1977). 

4. Applicability of Subsection (b) 

Manufacturer of defective article which is 
inherently dangerous, is liable in tort for 

damages to any person injured by his negli- 
gence, though there is no privity of contract. 
Blood Balm Co. v. Cooper, 83 Ga. 457, 10 
S.E. 118, 20 Am. St. R. 324, 5 L.R.A. 612 
(1889); Woodward v. Miller, 119 Ga. 618, 46 
S.E. 847, 100 Am. St. R. 188, 64 L.R.A. 932 
(1904). 

Manufacturer is liable if product, when 
sold, was not merchantable and reasonably 



71 



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Products Liability (Cont'd) 

4. Applicability of Subsection (b) (Cont'd) 

suited to use intended and its condition 
when sold is the proximate cause of the 
injury sustained. Firestone Tire & Rubber 
Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 
883 (1980). 

This statute does not apply to distributors. 
Hatcher v. Allied Prods. Corp., 796 F.2d 1427 
(11th Cir. 1986). 

Electricity is a product or "personal prop- 
erty sold as new property" when it is in the 
hands of and under the control of the 
consumer, intended to be available to the 
customer at a usable voltage. Monroe v. 
Savannah Elec. 8c Power Co., 219 Ga. App. 
460, 465 S.E.2d 508 (1995), aff'd, 267 Ga. 
26, 47 S.E.2d 854 (1996). 

Where decedent was killed by electricity 
that was not transformed or intended to be 
transformed for use at the customer's facil- 
ity, there was no basis for a claim against the 
electric company under paragraph (b)(1). 
Monroe v. Savannah Elec. 8c Power Co., 219 
Ga. App. 460, 465 S.E.2d 508 (1995), aff'd, 
267 Ga. 26, 47 S.E.2d 854 (1996). 

Product seller not a manufacturer. — In 
an action by an employee for injuries suf- 
fered using a paper cutter, where the com- 
plaint did not allege any facts showing that 
defendant company was a manufacturer un- 
der this section, or that defendant sold the 
product as "new property," the defendant 
could not be strictly liable. Mullins v. M.G.D. 
Graphics Sys. Group, 867 F. Supp. 1578 
(N.D. Ga. 1994). 

A corporation which purchased the assets 
of a manufacturer and sold, but did not 
manufacture, a product of the design man- 
ufactured by its predecessor, was a "product 
seller" under § 51-1-11.1, not a "manufac- 
turer" subject to strict liability under para- 
graph (b)(1). Farmex Inc. v. Wainwright, 269 
Ga. 548, 501 S.E.2d 802 (1998). 

"First sale" not applicable to person in- 
jured. — Where a spinal plate was first sold 
for use or consumption in 1972, the statute 
barred a patient's medical product liability 
claim based on use of the plate in 1988. 
Pafford v. Biomet, 210 Ga. App. 486, 436 
S.E.2d 504 (1993), modified on other 
grounds, 244 Ga. 540, 448 S.E.2d 347 
(1994). 

Vehicle not manufactured by defendant. 
— Defendant used-car dealer could not be 



held liable under a complaint alleging that 
plaintiffs' decedent was killed while driving a 
used car purchased from defendant which 
was defective when manufactured and that 
the car was covered by an express warranty 
of merchantability, issued by defendant at 
the time of purchase, where the vehicle in 
question was not manufactured by defen- 
dant. Ryals v. Billy Poppell, Inc., 192 Ga. 
App. 787, 386 S.E.2d 513 (1989). 

Proof of defect at time of sale or lease. — 
Failure of the brakes was not evidence that 
they were defective at the time plaintiff 
leased the truck because there were several 
plausible explanations for the brake failure, 
including negligent brake repair or exces- 
sive trailer weight. Jenkins v. GMC, 240 Ga. 
App. 636, 524 S.E.2d 324 (1999). 

Offering for sale or lease, marketing, or 
placing in stream of commerce, invokes sec- 
tion. — When a manufactured item de- 
signed to be sold as new merchandise is 
initially offered for sale or lease, or other- 
wise marketed or placed in the stream of 
commerce, the coverage of this section is 
invoked. Thorpe v. Robert F. Bullock, Inc., 
179 Ga. App. 867, 348 S.E.2d 55 (1986), 
aff'd, 256 Ga. 744, 353 S.E.2d 340 (1987). 

Evidence of wilful, reckless, or wanton 
conduct. — In a negligence action based on 
the sale of an automobile with an allegedly 
defectively-designed seat belt retractor 
mechanism, evidence pertaining to an ear- 
lier design was insufficient as a matter of law 
to establish wilful, reckless, or wanton mis- 
conduct where the design had subsequendy 
been modified and there was no evidence to 
suggest that the modifications were ineffec- 
tive or failed to correct the earlier problems. 
Chrysler Corp. v. Batten, 264 Ga. 723, 450 
S.E.2d 208 (1994). 

Failure to warn. — Claims based on neg- 
ligent failure to warn of the danger arising 
from a defectively-designed seat belt were 
not barred by the statute of repose. Chrysler 
Corp. v. Batten, 264 Ga. 723, 450 S.E.2d 208 
(1994). 

The statute of repose does not apply to 
"failure to warn" claims. Daniels v. 
Bucyrus-Erie Corp., 237 Ga. App. 828, 516 
S.E.2d848 (1999). 

Repairer of machine was not a manufac- 
turer under this section because, although it 
may have assembled component parts, it did 
not do so for the purpose of having the 



72 



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GENERAL PROVISIONS 



51-1-11 



machine sold as new property under its own 
trade name. Barry v. Stevens Equip. Co., 176 
Ga. App. 27, 335 S.E.2d 129 (1985). 

Product must be defective when sold. — 
In order to impose strict liability on the 
manufacturer of a product, the plaintiff 
must show that the manufacturer's product 
when sold by the manufacturer was defec- 
tive. Firestone Tire & Rubber Co. v. Pinyan, 
155 Ga. App. 343, 270 S.E.2d 883 (1980). 

The test in products liability is whether the 
product was merchantable and reasonably 
suited to the use intended as determined at 
the time the product is sold and when a 
product is alleged to be "defective" for lack 
of safety devices, the manufacturer is enti- 
tled to have the "defectiveness" of his prod- 
uct considered in the context of the overall 
original design of the item; this is especially 
true when the alleged defect in a product is 
the absence of safety features on a compo- 
nent of the product which would prevent 
injury in the event another component fails. 
Talley v. City Tank Corp., 158 Ga. App. 130, 
279S.E.2d 264 (1981). 

Product is not in defective condition when 
it is safe for normal handling and consump- 
tion. Center Chem. Co. v. Parzini, 234 Ga. 
868, 218S.E.2d580 (1975). 

A product is not in a defective condition 
when it is safe for normal handling. If injury 
results from abnormal handling, the manu- 
facturer is not liable. Argo v. Perfection 
Prods. Co., 730 F. Supp. 1109 (N.D. Ga. 
1989), aff'd, 935 F.2d 1295 (11th Cir. 1991). 

Manufacturer's duty to make product 
safe. — If a manufacturer does everything 
necessary to make the machine function 
properly for the purpose for which it is 
designed, if the machine is without any 
latent defect, and if its functioning creates 
no danger or peril that is not known to the 
user, then the manufacturer has satisfied the 
law's demands. Hunt v. Harley-Davidson Mo- 
tor Co., 147 Ga. App. 44, 248 S.E.2d 15 
(1978); Wansor v. George Hantscho Co., 595 
F.2d218 (5th Cir. 1979). 

Product must reach consumer without 
substantial change. — One of the conditions 
for imposition of strict liability against a 
manufacturer of "defective" products is that 
the product is expected to and does reach 
the user or consumer without substantial 
change in the condition in which it is sold. 
Talley v. City Tank Corp., 158 Ga. App. 130, 
279S.E.2d264 (1981). 



The determination of whether a compo- 
nent manufacturer is insulated from liability 
depends upon the extent to which the prod- 
uct is altered by the assembler before it 
reaches the ultimate user. Giordano v. Ford 
Motor Co., 165 Ga. App. 644, 299 S.E.2d 897 
(1983). 

Product offered on trial basis. — When a 
manufacturer in the business of marketing 
its product to an intended consumer offers 
the use of the product on a trial basis in 
order to make a sale, this section can be 
applied in a suit for an alleged injury occur- 
ring during the trial use. Robert F. Bullock, 
Inc. v. Thorpe, 256 Ga. 744, 353 S.E.2d 340 
(1987). 

Paragraph (bX2) operates retroactively. — 
Paragraph (b)(2) will operate retroactively to 
bar claim of a plaintiff injured several 
months after limitation period went into 
effect. Weeks v. Remington Arms Co., 733 
F.2d 1485 (11th Cir. 1984). 

Effects of alteration in product. — When a 
manufacturer is sued under this section for 
injuries proximately resulting from a defect 
in the design of his product existing at the 
time of sale, obviously if the design of that 
product has been independently altered, 
eliminated, and replaced by a third party 
after the sale and injuries then result, those 
injuries cannot be traced to or be the prox- 
imate result of the manufacturer's original 
design which did not exist at the time of 
injury; at the time of the tragic accident, the 
thing being used was not the thing sold. 
Talley v. City Tank Corp., 158 Ga. App. 130, 
279 S.E.2d 264 (1981). 

Manufacturer may show alteration. — 
When the alleged defect in a product is the 
absence of safety features, a manufacturer is 
entided to demonstrate that this alleged 
defect is ultimately based upon the failure of 
an integral part of the overall product, the 
original design of which component has 
been independently eliminated and re- 
placed by another and that there is thus no 
causal connection between any defect in the 
product existing at the time of sale and the 
injury. Talley v. City Tank Corp., 158 Ga. 
App. 130, 279 S.E.2d 264 (1981). 

As to product-design duty of manufac- 
turer, standard which courts have estab- 
lished is traditional one of reasonable care. 
A manufacturer or a seller does not have the 
status of an insurer as respects products 



73 



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Products Liability (Cont'd) 

4. Applicability of Subsection (b) (Cont'd) 

design. Hunt v. Harley-Davidson Motor Co., 
147 Ga. App. 44, 248 S.E.2d 15 (1978). 

In designing a product, a manufacturer's 
duty is one of reasonable care, under the 
circumstances. Coast Catamaran Corp. v. 
Mann, 171 Ga. App. 844, 321 S.E.2d 353 
(1984), aff'd, 254 Ga. 201, 326 S.E.2d 436 
(1985), overruled on other grounds, Banks 
v. ICI Ams., Inc., 264 Ga. 732, 450 S.E.2d 671 
(1994). 

Manufacturer is under no duty to guard 
against injury from patent peril or from 
source manifestly dangerous, nor is there a 
duty on the manufacturer or seller to warn 
of obvious common dangers connected with 
the use of a product. Hunt v. 
Harley-Davidson Motor Co., 147 Ga. App. 
44, 248 S.E.2d 15 (1978); Wansor v. George 
Hantscho Co., 595 F.2d 218 (5th Cir. 1979). 

Manufacturer is not an insurer. Center 
Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 
580 (1975). 

Neither a manufacturer nor a seller is an 
insurer that theirproduct is, from a design 
viewpoint, incapable of producing injury. 
Coast Catamaran Corp. v. Mann, 171 Ga. 
App. 844, 321 S.E.2d 353 (1984), aff'd, 254 
Ga. 201, 326 S.E.2d 436 (1985), overruled 
on other grounds, Banks v. ICI Ams., Inc., 
264 Ga. 732, 450 S.E.2d 671 (1994). 

Vendor has no general duty to test articles 
for defects prior to sale. — It is the general 
rule that a vendor or dealer who is not the 
manufacturer is under no obligation to test 
an article purchased and sold by him for the 
purpose of discovering latent, or concealed 
defects, and that when he purchases and 
sells an article in common and general use, 
in the usual course of trade, without knowl- 
edge of its dangerous quality, and with noth- 
ing tending reasonably to call his attention 
thereto, he is not negligent in failing to 
exercise care to determine whether it is 
dangerous or not. He may assume that the 
manufacturer has done his duty in properly 
constructing the article and in not placing 
upon the market a commodity which is 
defective and likely to inflict injury. Ellis v. 
Rich's, Inc., 132 Ga. App. 430, 208 S.E.2d 
331 (1974), aff'd, 233 Ga. 573, 212 S.E.2d 
373 (1975). 

If seller has reason to anticipate that dan- 
ger may result from particular use seller may 



be required to give adequate warning of the 

danger, and a product sold without such 
warning is in a defective condition. Center 
Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 
580 (1975); Talley v. City Tank Corp., 158 
Ga. App. 130, 279 S.E.2d 264 (1981). 

Duty to warn extends only as to foresee- 
able uses of product. — A duty to warn of 
danger in the use of a product extends only 
to the use of the product in the manner 
reasonably contemplated and anticipated by 
the manufacturer; when the use to which a 
product was being put at the time of injury is 
not that originally intended by the manufac- 
turer, the determination of whether strict 
liability may be asserted as a viable theory of 
recovery or whether the manufacturer is 
insulated from liability because the use of 
the product was "abnormal" and interven- 
ing depends, initially, upon the 
foreseeability that the product would be put 
to that use. Talley v. City Tank Corp., 158 Ga. 
App. 130, 279 S.E.2d 264 (1981). 

Duty to warn of danger in use of product 
extends only to use of product in manner 
reasonably contemplated and anticipated by 
manufacturer, and dumpster manufacturer 
could not be held to reasonably foresee that 
a small child would be permitted to play in a 
dumpster. Greenway v. Peabody Int'l Corp., 
163 Ga. App. 698, 294 S.E.2d 541 (1982). 

No duty to warn as to effects of improper 
uses of product. — There is no duty to warn 
that a redesign and replacement of the 
integral and ultimately injurious component 
of a product will destroy the original design 
and may result in an essentially different 
product with new "dangerous propensities"; 
the consumer's conscious decision not to use 
the product as it was originally manufac- 
tured and designed creates a danger readily 
apparent even without a warning. Talley v. 
City Tank Corp., 158 Ga. App. 130, 279 
S.E.2d 264 (1981). 

There is no duty to warn of the obvious 
danger of using a manufacturer's product as 
the mere foundation from which a rede- 
signed instrumentality will be produced. 
Talley v. City Tank Corp., 158 Ga. App. 130, 
279 S.E.2d 264 (1981). 

Adequacy of warning. — Strict liability is 
not imposed under subsection (b) merely 
because a product may be dangerous. If 
products are properly prepared, manufac- 
tured, packaged and accompanied with ade- 



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quate warnings and instructions, they can- 
not be said to be defective. Thornton v. E.I. 
Du Pont De Nemours & Co., 22 F.3d 284 
(11th Cir. 1994). 

Where defendant marketed its lacquer 
thinner solely to professionals, and the prod- 
uct carried a warning of the hazards con- 
nected with its use, which was reasonably 
calculated to reach the average user and 
contained clear and simple language, defen- 
dant did not breach its duty to warn of 
nonobvious foreseeable dangers from the 
normal use of its product. Thornton v. E.I. 
Du Pont De Nemours & Co., 22 F.3d 284 
(11th Cir. 1994). 

Latent design defect must be shown. — 
Where appellant was using a bulldozer man- 
ufactured by appellees for purpose of clear- 
ing felled trees from a construction site, 
when a tree jumped over the bulldozer blade 
and struck him in the chest, his injuries 
arose not from a latent design defect, but 
from an obvious one, the lack of a protective 
metal cage surrounding the driver's seat, 
and such alleged defect was not actionable. 
Stodghill v. Fiat-Allis Constr. Mach., Inc., 163 
Ga. App. 811, 295 S.E.2d 183 (1982). 

Absence of lawn mower safety device not a 
defect. — The absence of a "deadman de- 
vice" that would automatically turn a lawn 
mower motor off once the operator left the 
driver's seat did not, in and of itself, render 
a lawn mower "defective," and therefore, as 
a matter of law, the manufacturer could not 
be held stricdy liable for the injury suffered 
by the plaintiff when he fell off the mower, 
which continued to operate, eventually in- 
juring the plaintiff's leg. Pressley v. 
Sears-Roebuck & Co., 738 F.2d 1222 (11th 
Cir. 1984). 

Failure to install deadman control on 
rototiller. — Finding that the alleged defect 
of failing to install a deadman control on the 
rototiller's forward gear was open and obvi- 
ous, liability is barred under each of plain- 
tiff's theories of recovery: strict liability, neg- 
ligence, and inadequate warning. Smith v. 
Garden Way, Inc., 821 F. Supp. 1486 (N.D. 
Ga. 1993), aff'd, 12 F.3d 220 (11th Cir. 
1993). 

Black bicycle helmet was not defective 
since its lack of conspicuity was observable 
from a simple visual inspection. Berkner v. 
Bell Helmets, Inc., 822 F. Supp. 721 (N.D. 
Ga. 1993), aff'd, 9 F.3d 121 (11th Cir. 1993). 



Firearm is not inherently defective merely 
because its firing resulted in the death of an 
innocent bystander. Rhodes v. R.G. Indus., 
Inc., 173 Ga. App. 51, 325 S.E.2d 465 (1984). 

Manufacturer of spermicide. — In a prod- 
ucts liability action against a corporation 
which manufactured and marketed a 
spermicide, to recover damages arising from 
multiple birth defects suffered by an infant, 
the corporation -knew or should have known 
of the potential danger that its product 
might cause birth defects because various 
studies suggesting this risk were available 
well before the infant's mother first obtained 
the product. This potential danger required 
a warning, and the absence of such a warn- 
ing constituted a defect in the product. Wells 
ex rel. Maihafer v. Ortho Pharmaceutical 
Corp., 615 F. Supp. 262 (N.D. Ga. 1985), 
aff'd in part sub nom. Wells v. Ortho Phar- 
maceutical Corp., 788 F.2d 741 (11th Cir.), 
cert, denied, 479 U.S. 950, 107 S. Ct. 437, 93 
L. Ed. 2d 386 (1986). 

Manufacturer of vaccine. — A drug man- 
ufacturer was not liable for injuries to a child 
born after its mother had been injected with 
a measles-mumps-rubella vaccine for which 
the manufacturer had taken all precautions 
necessary to warn of any potential injury to 
an unborn fetus, and the injection was re- 
ceived from a licensed practical nurse who 
was aware of the risks and had read and 
understood a circular accompanying the vac- 
cine. Walker v. Merck & Co., 648 F. Supp. 931 
(M.D. Ga. 1986), aff'd, 831 F.2d 1069 (11th 
Cir. 1987). 

Motor vehicle striking fallen electric wire. 
— Strict liability provided for in subsection 
(b) is not applicable to make a power com- 
pany liable for injuries sustained when mo- 
tor vehicle struck a fallen electric wire since 
the accident did not involve any "personal 
property sold as new property." Georgia 
Power Co. v. Collum. 176 Ga. App. 61, 334 
S.E.2d922 (1 Q 85). 

Doughnut fryer functioned properly for 
its intended use and was not defective as a 
matter of law, where the danger attendant to 
its use was patent and a doughnut shop 
employee's injuries did not result from any 
malfunction due to product design but in- 
stead occurred when another person dis- 
lodged the fryer from its position on a table. 
Orkin Exterminating Co. v. Dawn Food 
Prods., 186 Ga. App. 201, 366 S.E.2d 792, 



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Products Liability (Cont'd) 

4. Applicability of Subsection (b) (Cont'd) 

cert, denied, 186 Ga. App. 918, 366 S.E.2d 
792 (1988). 

Propane heater and valve incorporated 
into the heater as a component part were 
not defective products when manufactured, 
and the manufacturers could not have rea- 
sonably foreseen that the automatic safety 
shut-off switch on the valve would be taped 
down by an industrial user so as to defeat the 
valve's safety function. Argo v. Perfection 
Prods. Co., 730 F. Supp. 1109 (N.D. Ga. 
1989), aff'd, 935 F.2d 1295 (11th Cir. 1991). 

Manufacturer of chemical known as 
methyl ethyl ketone provided adequate 
warnings of the product's potential danger, 
where the label affixed to the outside of its 
container clearly and graphically advised 
that the chemical was both flammable and 
explosive and that it should not be exposed 
to sparks. Copeland v. Ashland Oil, Inc., 188 
Ga. App. 537, 373 S.E.2d 629, cert, denied, 
188 Ga. App. 911, 373 S.E.2d 629 (1988). 

Fireman's Rule. — The Fireman's Rule 
prevents a fireman injured in the course of 
his duties from bringing an action for negli- 
gence against the manufacturer of a product 
whose explosion during the fire causes the 
fireman's injury. White v. Edmond, 971 F.2d 
681 (11th Cir. 1992). 

Access and egress system on a "skidsteer 
loader" used to knock down and transport 
molten glass waste did not constitute a de- 
sign defect, where the machine included a 
system which provided for emergency exit in 
all but the most extraordinary circum- 
stances. Foskey v. Clark Equip. Co., 715 F. 
Supp. 1088 (M.D. Ga. 1989), aff'd, 914 F.2d 
269 (11th Cir. 1990). 

Section 51-1-28 bars claim for defective 
blood under this section. Timms v. Verson 
Allsteel Press Co., 520 F. Supp. 1147 (N.D. 
Ga. 1981). 

Joint tort-feasors. — The theoretical basis 
of strict liability is in tort, and where manu- 
facturer is guilty in strict liability and an- 
other party is found to be negligent, they are 
deemed joint tort-feasors. Colt Indus. Oper- 
ating Corp. v. Coleman, 246 Ga. 559, 272 
S.E.2d251 (1980). 

Recovery in strict liability in tort cannot be 
had solely for property damage to the alleg- 
edly defective property itself. Long Mfg., 



N.C., Inc. v. Grady Tractor Co., 140 Ga. App. 
320, 231 S.E.2d 105 (1976); Henderson v. 
GMC, 152 Ga. App. 63, 262 S.E.2d 238 
(1979), 

Cause of action in negligence for property 
damage to defective personal property itself 
is cognizable under subsection (b). Long 
Mfg., N.C., Inc. v. Grady Tractor Co., 140 Ga. 
App. 320, 231 S.E.2d 105 (1976). 

Corporations lack standing to bring action 
under section. — Georgia courts and the 
federal district courts have continually disal- 
lowed actions in strict liability brought by 
corporations because under this section a 
corporation has no standing to bring such 
an action. Baltimore Football Club, Inc. v. 
Lockheed Corp., 525 F. Supp. 1206 (N.D. 
Ga. 1981). 

Consortium action in connection with 
products liability. — A wife may maintain an 
action for loss of consortium in connection 
with a products liability action for injury to 
the husband. Timms v. Verson Allsteel Press 
Co., 520 F. Supp. 1147 (N.D. Ga. 1981). 

Wrongful death action based on product 
liability. — A spouse has the right to recover 
for the wrongful death of her husband, in a 
product liability action. Timms v. Verson 
Allsteel Press Co., 520 F. Supp. 1147 (N.D. 
Ga. 1981). 

5. Design Defect Cases 

Risk-utility analysis. — In product liability 
design defect cases, a risk-utility analysis — a 
balancing test whereby the risks inherent in 
a product design are weighed against the 
utility or benefit derived from the prod- 
uct — is the appropriate test for reaching the 
legal conclusion that a product's design 
specifications were partly or totally defective. 
Banks v. ICI Americas, Inc., 264 Ga. 732, 450 
S.E.2d67l (1994). 

The risk-utility analysis incorporates the 
concept of "reasonableness," i.e., whether 
the manufacturer acted reasonably in choos- 
ing a particular product design, given the 
probability and seriousness of the risk posed 
by the design, the usefulness of the product 
in that condition, and the burden on the 
manufacturer to take the necessary steps to 
eliminate the risk. Banks v. ICI Americas, 
Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). 

General factors considered in a risk-utility 
analysis include: the usefulness of the prod- 
uct; the gravity and severity of the danger 



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posed by the design; the likelihood of that 
danger; the avoidability of the danger, i.e., 
the user's knowledge of the product, public- 
ity surrounding the danger, or the efficacy of 
warnings, as well as common knowledge and 
the expectation of danger; the user's ability 
to avoid danger; the state of the art at the 
time the product is manufactured; the ability 
to eliminate danger without impairing the 
usefulness of the product or making it too 
expensive; and the feasibility of spreading 
the loss in the setting of the product's price 
or by purchasing insurance. Banks v. ICI 
Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 
(1994). 

A manufacturer's proof of compliance 
with industry-wide practices, state of the art, 
or federal regulations does not eliminate 
conclusively its liability for its design of alleg- 
edly defective products. Banks v. ICI Ameri- 
cas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). 

Alternative safe design factors include: the 
feasibility of an alternative design; the avail- 
ability of an effective substitute for the prod- 
uct which meets the same need but is safer; 
the financial costs of the improved design; 
and the adverse effects from the alternative. 
Banks v. ICI Americas, Inc., 264 Ga. 732, 450 
S.E.2d671 (1994). 

In regard to the benefits aspect of the 
balancing test, factors that could be consid- 
ered include the appearance and aesthetic 
attractiveness of the product; its utility for 
multiple uses; the convenience and extent of 
its use, especially in light of the period of 
time it could be used without harm resulting 
from the product; and the collateral safety of 
a feature other than the one that harmed 
the plaintiff. Banks v. ICI Americas, Inc., 264 
Ga. 732, 450 S.E.2d 671 (1994). 

Impossible to determine presence of de- 
sign defect. — In an action arising from a 
head on collision at high speed, the design 
of the fuel and seat systems of one of the 
vehicles could not be found to be defective 
in light of the extreme impact, speed and 
resulting forces. Timmons v. Ford Motor Co., 
982 F. Supp. 1475 (S.D. Ga. 1997), aff'd, 161 
F.3d22 (11th Cir. 1998). 

6. Strict Liability 

Negligence not element of strict liability 
under subsection (b). — The strict liability 
imposed under subsection (b) is not based 
on negligence. While negligence on the part 



of the manufacturer may happen to be in- 
volved as a matter of fact in a given situation, 
it is not necessarily so, and the statute im- 
poses liability irrespective of negligence. 
Ford Motor Co. v. Carter, 239 Ga. 657, 238 
S.E.2d 361 (1977); Colt Indus. Operating 
Corp. v. Coleman, 246 Ga. 559, 272 S.E.2d 
251 (1980); Firestone Tire & Rubber Co. v. 
Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 
(1980). 

If a court should construe an action as 
being a tort action under subsection (b) 
because of the failure of the product to be 
merchantable, or not suitable to the use 
intended, the action, though in tort, would 
be based not on negligence, but on the 
ground that the proximate causes of plain- 
tiff's injuries were the lack of merchantabil- 
ity or lack of suitability to the use intended of 
the product purchased, which are identical 
to the factors of an action on an implied 
warranty. Evershine Prods., Inc. v. Schmitt, 
130 Ga. App. 34, 202 S.E.2d 228 (1973). 

Subsection (b) does not apply to negli- 
gence claims as well as strict liability claims. 
Hatcher v. Allied Prods. Corp., 256 Ga. 100, 
344 S.E.2d 418 (1986). 

Privity of contract not required for action 
under subsection (b). — The action is in tort 
and privity of contract is not necessary nor 
can the manufacturer avail itself of the usual 
contract or warranty defenses. Center Chem. 
Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 
(1975); Wansor v. George Hantscho Co., 243 
Ga. 91, 252 S.E.2d 623 (1979); Firestone Tire 
& Rubber Co. v. Pinyan, 155 Ga. App. 343, 
270S.E.2d883 (1980). 

Strict liability is imposed for injuries 
which are proximate result of product de- 
fects, not for the manufacture of defective 
products; unless the manufacturer's defec- 
tive product can be shown to be the proxi- 
mate cause of the injuries, there can be no 
recovery. Talley v. City Tank Corp., 158 Ga. 
App. 130, 279 S.E.2d 264 (1981). 

Basis of judgment in strict liability. — A 
manufacturer has the absolute right to have 
his strict liability for injuries adjudged on the 
basis of the design of his own marketed 
product and not that of someone else. Talley 
v. City Tank Corp., 158 Ga. App. 130, 279 
S.E.2d 264 (1981). 

7. Pleading and Practice 

Pleading defect in machinery. — In tort 
actions based on the malfunctioning of ma- 



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Products Liability (Cont'd) 

7. Pleading and Practice (Cont'd) 

chinery, it is sufficient if the petition alleges 
that the machine was in such a condition 
that it produced certain definite described 
results (the injury), which it would not have 
produced had it not been defective and had 
it functioned properly. Vickers v. Georgia 
Power Co., 79 Ga. App. 456, 54 S.E.2d 152 
(1949). 

Virginia law inapplicable to Georgia ac- 
tion. — Where plaintiff, injured while driv- 
ing in Virginia, brought an action in Georgia 
against the car manufacturer under a strict 
liability theory, Virginia products liability law 
did not apply since it did not recognize 
recovery on the basis of strict liability and 
was contrary to the public policy of Georgia. 
Alexander v. GMC, 267 Ga. 339, 478 S.E.2d 
123 (1996). 

Self-destruction as prima-facie evidence 
of defect. — Where a defect cannot be 
directly observed, that fact does not prevent 
a plaintiff from establishing a prima-facie 
case against a manufacturer if the product 
has a defect which causes its own destruc- 
tion. Firestone Tire 8c Rubber Co. v. King, 
145 Ga. App. 840, 244 S.E.2d 905 (1978). 

Existence of manufacturing defect in 
products liability case may be inferred from 
circumstantial evidence. Firestone Tire & 
Rubber Co. v. King, 145 Ga. App. 840, 244 
S.E.2d905 (1978). 

Statute of repose. — The "first sale for use 
or consumption" of a spinal plate did not 
occur when the manufacturer sold it to the 
hospital but took place when it was removed 
from the hospital's inventory and sold to the 
patient for its actual intended purpose of 
placement in his back. Pafford v. Biomet, 
264 Ga. 540, 448 S.E.2d 347 (1994). 

Liability is not imposed upon a manufac- 
turer by the provisions of paragraph (b)(2), 
but by the provisions of paragraph (b)(1); 
paragraph (b)(2) merely sets an ultimate 
limit on which injuries shall be actionable. 
Thus, if a spinal plate was not defective when 
it was sold to the hospital and subsequently 
became defective only as the result of re- 
maining in the hospital's inventory for more 
than ten years, the patient would have no 
viable claim against the manufacturer. 
Pafford v. Biomet, 264 Ga. 540, 448 S.E.2d 
347 (1994). 



The statute of repose bars any lawsuit 
brought more than 10 years after the sale to 
the first consumer. Davis v. Brunswick Corp., 
854 F. Supp. 1574 (N.D. Ga. 1993). 

The phrase "use or consumption" in para- 
graph (b)(2) means that the statute of re- 
pose begins to run when the product first 
enters the stream of commerce. Davis v. 
Brunswick Corp., 854 F. Supp. 1574 (N.D. 
Ga. 1993). 

Error to dismiss claim — In a products 
liability action stemming from an automo- 
bile accident, because a question of fact 
existed regarding whether the manufactur- 
er's actions constituted a "willful, reckless, 
or wanton disregard for property or life," it 
was error to dismiss plaintiffs' design defect 
claim. Watkins v. Ford Motor Co., 190 F.3d 
1213 (11th Cir. 1999). 

Statute of repose did not apply. — In a 
products liability action stemming from an 
automobile accident, plaintiffs' failure to 
warn claim was not merely a restatement of 
their design defect claim and therefore was 
not subject to the statute of repose. Watkins 
v. Ford Motor Co., 190 F.3d 1213 (11th Cir. 
1999). 

Date action filed, not date of injury, deter- 
mines applicability of statute of limitations. 
— Subsection (b)(2) is a complete bar to 
strict liability actions filed more than 10 
years after the "date of the first sale for use 
or consumption of" the product regardless 
of whether the underlying injury occurred 
within the ten-year period. Hatcher v. Allied 
Prods. Corp., 256 Ga. 100, 344 S.E.2d 418 
(1986). 

Where an injury occurred less than ten 
years after the first sale of the product, but 
suit was not filed more than ten years after 
the first sale of the product, this statute 
barred a strict liability claims based on an 
alleged defect in the product causing the 
injury. Hatcher v. Allied Prods. Corp., 796 
F.2d 1427 (11th Cir. 1986). 

Applicability of limitation period. — In a 
case involving a strict liability claim, where 
paragraph (b)(2) was enacted both before 
the injury and before the complaint was 
filed, but after the first sale occurred, the 
ten-year limitation will be given appropriate 
application. LFE Corp. v. Edenfield, 187 Ga. 
App. 785, 371 S.E.2d 435, cert, denied, 187 
Ga. App. 908, 371 S.E.2d 435 (1988). 

Subsection (c) cannot be applied retroac- 



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GENERAL PROVISIONS 



51-1-11 



tively where both the injury and the filing of 
the original complaint preceded the effec- 
tive date of its enactment. LFE Corp. v. 
Edenfield, 187 Ga. App. 785, 371 S.E.2d 435, 
cert, denied, 187 Ga. App. 908, 371 S.E.2d 
435 (1988). 

Paragraph (bX2) operates retroactively. — 
Paragraph (b)(2) will operate retroactively to 
bar claim of a plaintiff injured several 
months after limitation period went into 
effect. Weeks v. Remington Arms Co., 733 
F.2d 1485 (11th Cir. 1984). 

Time limitation not traditional statute of 
limitations. — In the 1978 amendment to 
subsection (b) of this section, the Legisla- 
ture expressly placed time restrictions on the 
bringing of a cause of action under the 
subsection, but it was not a traditional statute 
of limitations, which typically declares that 
no suit shall be maintained on such causes of 
action unless brought within a specified pe- 
riod after the right accrued. Daniel v. Amer- 
ican Optical Corp., 251 Ga. 166, 304 S.E.2d 
383 (1983). 

Application of general statute of limita- 
tions. — Since subsection (b) must be strictly 
construed, the 1978 amendment thereof was 
not intended to preclude the application of 
a general statute of limitations, such as 
§ 9-3-33, which would otherwise apply, or to 
suggest that no general statute of limitations 
applied to strict products liability actions 
under subsection (b) prior to the 1978 
amendment. Daniel v. American Optical 
Corp., 251 Ga. 166, 304 S.E.2d 383 (1983). 

The two-year statute of limitations pro- 
vided by § 9-3-33 applies to products liability 
actions. Smith, Miller 8c Patch v. Lorentzson, 
254 Ga. Ill, 327 S.E.2d 221 (1985). 

Subsection (c) not applied retroactively. 
— Subsection (c) cannot be applied to bar 
products liability actions based on negli- 
gence where the cause of action accrued 
before the subsection's effective date, July 1, 
1987. Browning v. Maytag Corp., 261 Ga. 20, 
401 S.E.2d725 (1991). 

The doctrine of res ipsa loquitur does not 
apply where there is any intervention of an 
intermediary cause which produces or could 
produce the sustained injury. Molden v. At- 
lanta Coca-Cola Bottling Co., 175 Ga. App. 
298, 333S.E.2d 175 (1985). 

Summary judgment denied. — Operator 
of airport passenger conveyance was prop- 
erly denied summary judgment where it 



failed to submit any evidence rebutting pas- 
senger's assertion that the conveyance's lack 
of seats and its deceleration rate for emer- 
gency stops constituted defects in design. 
Westinghouse Elec. Corp. v. Williams, 173 
Ga. App. 118, 325 S.E.2d 460 (1984), aff'd, 
183 Ga. App. 845, 360 S.E.2d 411 (1987). 

Loss of product. — Where the plaintiffs' 
claim against the manufacturer of turnbuck- 
les was based on the unfitness of thousands 
of turnbuckles for the purpose intended, as 
opposed to some idiosyncratic defect affect- 
ing only a lost turnbuckle, loss of the prod- 
uct did not impair either the plaintiffs' abil- 
ity to show the defect claimed or the 
defendant's ability to present a defense to 
the claim. Chicago Hdwe. 8c Fixture Co. v. 
Letterman, 236 Ga. App. 21, 510 S.E.2d 875 
(1999). 

No exception under subsection (c). — 
The language of subsection (c) provides an 
exception to the statute of repose for negli- 
gence actions claiming failure to warn and 
disease causation, but does not create an 
exception for these theories under strict 
liability claims. Allison v. McGhan Medical 
Corp., 184 F.3d 1300 (11th Cir. 1999). 

Purely economic losses, such as the loss of 
the use of the property or the cost of repair- 
ing it, are not compensable under this sec- 
tion when no personal injury or physical 
damage has occurred except to the allegedly 
defective product itself. Busbee v. Chrysler 
Corp., 240 Ga. App. 664, 524 S.E.2d 539 
(1999). 

8. Defenses 

Discovery of defect by product user. — If 

the user or consumer discovers the defect 
and is aware of the danger, but nevertheless 
proceeds unreasonably to make use of the 
product, he is barred from recovery. Center 
Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 
580 (1975); Hunt v. Harley-Davidson Motor 
Co., 147 Ga. App. 44, 248 S.E.2d 15 (1978). 

In most product liability cases, the manu- 
facturer's defense will be that the plaintiff 
assumed the risk that the defect in the 
product would produce the injury sustained 
by using it with actual knowledge of the 
defect. Deere 8c Co. v. Brooks, 250 Ga. 517, 
299S.E.2d704 (1983). 

If injury results from abnormal handling 
the seller is not liable. Center Chem. Co. v. 
Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975). 



79 



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Products Liability (Cont'd) 
8. Defenses (Cont'd) 

Manufacturer may demonstrate in de- 
fense that the product was in fact merchant- 
able and fit for the purpose intended, or that 
if there was a deficiency in such regard there 
was no causal connection between the 
breach and the damages sued for, or that 
some other factor was the sole proximate 
cause of the damage. Firestone Tire 8c Rub- 
ber Co. v. Pinyan, 155 Ga. App. 343, 270 
S.E.2d883 (1980). 

The defense of assumption of risk, al- 
though not the defense of contributory neg- 
ligence, is applicable in a product liability 
case. Deere 8c Co. v. Brooks, 250 Ga. 517, 299 
S.E.2d 704 (1983). 

Assumption of the risk is applicable to 
product liability cases if the user or con- 
sumer discovers the product's defect and is 
aware of the danger emanating from that 
defect, but nevertheless proceeds unreason- 
ably to make use of the product. Coast 
Catamaran Corp. v. Mann, 171 Ga. App. 844, 
321 S.E.2d 353 (1984), afif'd, 254 Ga. 201, 
326 S.E.2d 436 (1985), overruled on other 
grounds, Banks v. ICI Ams., Inc., 264 Ga. 
732, 450S.E.2d671 (1994). 

Obvious danger is complete defense. — 
The open and obvious danger rule is a 
complete defense to claims based upon neg- 
ligence, strict liability, and failure to warn. 
The plaintiff, not the defendant, bears the 
burden of proof for demonstrating that the 
peril causing the injury is latent, or not 
patent. Morris v. Clark Equip. Co., 904 F. 
Supp. 1379 (M.D. Ga. 1995), aff'd, 129 F.3d 
615 (11th Cir. 1997). 

Open and obvious danger did not pre- 
clude action. — Summary judgment was 
precluded in an action by a consumer alleg- 
ing that the manufacturer's lemon-scented 
bleach was unmerchantable and unsuitable 
for its intended use, where the Material 
Safety Data Sheet prepared for the 
lemon-scent additive warned that the scent 
was incompatible with strong oxidizing 
agents and where, while the manufacturer's 
label identified the bleach as a "strong oxi- 
dizer," under a risk utility analysis an open 
and obvious danger did not preclude an 
action, since this is but one factor to be 
considered in determining whether a prod- 
uct is defective. Zeigler v. Clowhite Co., 234 



Ga. App. 627, 507 S.E.2d 182 (1998). 

Action not untimely. — Plaintiff's 1986 
strict liability action for injuries sustained in 
1970 when her nightgown caught fire was 
not untimely, where the gown had been 
purchased sometime after July, 1968, and 
plaintiff did not reach majority age until 
1986. Morgan v. Sears, Roebuck & Co., 700 F. 
Supp. 1574 (N.D. Ga. 1988). 

9. Jury Questions 

Whether product is defective is jury ques- 
tion. — The question under the strict liabil- 
ity theory is whether the product was defec- 
tive in that there was a failure to adequately 
warn of its dangerous propensities. If so, the 
jury should look to the evidence to see 
whether the plaintiff knew these facts and 
nevertheless assumed the risk of its use in 
the manner in which it was used, so as to bar 
him from recovery. Parzini v. Center Chem. 
Co., 136 Ga. App. 396, 221 S.E.2d 475 
(1975); Stokes v. Peyton's, Inc., 526 F.2d 372 
(5th Cir. 1976). 

In strict liability case brought by driver 
against tire manufacturer, the questions for 
jury resolution were whether there was a 
defect in the tire and, if so, whether driver's 
injuries were the proximate result of that 
defect or of his own acts in causing the crash; 
the question was whether driver's acts were 
the sole proximate cause of his injuries, not 
whether his acts which proximately caused 
his injuries were acts of negligence. 
Firestone Tire 8c Rubber Co. v. Pinyan, 155 
Ga. App. 343, 270 S.E.2d 883 (1980). 

In some cases it may be a jury question as 
to whether the product's original design has 
been merely slighdy or somewhat modified; 
in such cases, the jury must determine 
whether the original manufacturer's design 
was defective and, if so, whether the proxi- 
mate cause of the injuries sustained was the 
original defective design or the subsequent 
modification. Talley v. City Tank Corp., 158 
Ga. App. 130, 279 S.E.2d 264 (1981). 

Defect held not found. — Evidence that a 
patron of a self-service gasoline station 
slipped on a clearly distinguishable oil stain 
on the driveway and fell was insufficient to 
show a defect in the manufacture of the 
concrete used on the driveway. Griffin v. 
Crown Cent. Petroleum Co., 171 Ga. App. 
534, 320 S.E.2d 383 (1984). 



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RESEARCH REFERENCES 



Am. Jur. 2d. — 74 Am. Jur. 2d, Torts, § 52. 

C.J.S. — 86 C.J.S., Torts, §§ 11, 39. 

ALR. — Liability for injuries by breaking 
or bursting of container in which goods are 
sold, 4 ALR 1094. 

Automobiles: effect of defective brakes on 
liability for injury, 14 ALR 1339; 63 ALR 398; 
170 ALR 611. 

Liability of manufacturer or packer of 
defective article for injury to person or prop- 
erty of ultimate consumer, who purchased 
from a middleman, 17 ALR 672; 39 ALR 992; 
63 ALR 340; 88 ALR 527; 105 ALR 1502; 1 1 1 
ALR 1239; 140 ALR 191; 142 ALR 1490. 

Res ipsa loquitur in case of electric shock 
from electrical household appliance, 34 ALR 
31. 

Liability of seller of article not inherently 
dangerous to third person for injury or 
death due to dangerous condition of article 
sold, 42 ALR 1243; 60 ALR 1054. 

Liability of one undertaking to repair au- 
tomobile for injury to third person, 52 ALR 
857. 

Reliance on dealer's or manufacturer's 
assurance that article is not dangerous as 
affecting question of contributory negli- 
gence, 55 ALR 1047. 

Liability of seller of article not inherently 
dangerous for personal injuries due to the 
defective or dangerous condition of the ar- 
ticle, 74 ALR 343; 168 ALR 1054. 

Duty of manufacturer or seller to warn of 
latent dangers incident to article as a class, as 
distinguished from duty with respect to de- 
fects in particular article, 86 ALR 947. 

Liability for injury or death from refriger- 
ating machinery or apparatus, 117 ALR 
1425. 

Joinder of manufacturer or packer and 
retailer or other middleman as defendants 
in action for injury to person or damaged 
property of purchaser or consumer of defec- 
tive article, 119 ALR 1356. 

Mistake as to chemical or product fur- 
nished or misdescription thereof by label or 
otherwise as basis of liability for personal 
injury or death resulting from combination 
with other chemical, 123 ALR 939. 

Implied warranty of reasonable fitness of 
food for human consumption as breached 
by substance natural to the original product 
and not removed in processing, 143 ALR 
1421. 



Negligence and contributory negligence 
in respect of delivery of petroleum products, 
151 ALR 1261. 

Manufacturer's liability for injury or dam- 
age as affected by his test, or by his failure to 
test, for defects, 156 ALR 479. 

Intervening purchaser's knowledge of de- 
fects in or danger of article, or failure to 
inspect therefor, as affecting liability of man- 
ufacturer or dealer for personal injury or 
property damage to subsequent purchaser 
or other third person, 164 ALR 371. 

Manufacturer's liability for negligence 
causing injury to person or damage to prop- 
erty, of ultimate consumer or user, 164 ALR 
569. 

Liability of person furnishing, installing, 
or maintaining burglar alarm for loss from 
burglary, 165 ALR 1254. 

Presumption of negligence from foreign 
substance in food, 171 ALR 1209. 

Breach of assumed duty to inspect prop- 
erty as ground of liability for damage or 
injury to third person, 6 ALR2d 284. 

Liability of manufacturer or wholesaler for 
injury caused by third person's use of explo- 
sives or other dangerous article sold to re- 
tailer in violation of law, 11 ALR2d 1028. 

Seller's or manufacturer's liability for in- 
juries as affected by buyer's or user's allergy 
or unusual susceptibility to injury from arti- 
cle, 26 ALR2d 963. 

Recovery by contractor or artisan, suing 
for breach of warranty, of damages for loss of 
good will occasioned by use in his business of 
unfit materials, 28 ALR2d 591. 

Presumption or prima facie case of negli- 
gence based on presence of foreign sub- 
stance in bottled or canned beverage, 52 
ALR2d 117. 

Negligence of building or construction 
contractor as ground of liability upon his 
part for injury or damage to third person 
occurring after completion and acceptance 
of the work, 58 ALR2d 865. 

Liability of landlord to tenant or member 
of tenant's family, for injury by animal or 
insect, 67 ALR2d 1005. 

Privity of contract as essential to recovery 
in negligence action against manufacturer 
or seller of product alleged to have caused 
injury, 74 ALR2d 1111. 

Privity of contract as essential to recovery 



81 



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in action based on theory other than negli- 
gence, against manufacturer or seller of 
product alleged to have caused injury, 75 
ALR2d 39. 

Statements in advertisements as affecting 
manufacturer's or seller's liability for injury 
caused by product sold, 75 ALR2d 112. 

Manufacturer's or seller's duty to give 
warning regarding product as affecting his 
liability for product-caused injury, 76 ALR2d 
9; 53 ALR3d 239. 

What law governs liability of manufacturer 
or seller for injury caused by product sold, 
76 ALR2d 130. 

Liability of manufacturer or seller for in- 
jury caused by food or food product sold, 77 
ALR2d 7. 

Liability of manufacturer or seller for in- 
jury caused by beverage sold, 77 ALR2d 215. 

Liability of manufacturer or seller for in- 
jury caused by automobile or other vehicle, 
aircraft, boat, or their parts, supplies, or 
equipment, 78 ALR2d 460; 5 ALR4th 483. 

Liability of manufacturer or seller for in- 
jury caused by industrial, business, or farm 
machinery, tools, equipment, or materials, 

78 ALR2d 594; 8 ALR4th 70. 

Liability of manufacturer or seller for in- 
jury caused by paint, cement, lumber, build- 
ing supplies, ladders, small tools, and like 
products, 78 ALR2d 696. 

Liability of manufacturer or seller for in- 
jury caused by toys, games, athletic or sports 
equipment, or like products, 78 ALR2d 738. 

Liability of manufacturer or seller for in- 
jury caused by drug or medicine sold, 79 
ALR2d 301. 

Liability of manufacturer or seller for in- 
jury caused by medical and health supplies, 
appliances, and equipment, 79 ALR2d 401. 

Liability of manufacturer or seller of hair 
preparations, cosmetics, soaps and other 
personal cleansers, and the like, for injury 
caused by the product, 79 ALR2d 431. 

Liability of manufacturer or seller for in- 
jury caused by domestic or industrial soaps, 
detergents, cleansers, polishes, and the like, 

79 ALR2d 482. 

Liability of manufacturer or seller for in- 
jury caused by firearms, explosives, and flam- 
mables, 80 ALR2d 488; 94 ALR3d 291; 15 
ALR4th 909; 18 ALR4th 206. 

Liability of manufacturer or seller for in- 
jury caused by household and domestic ma- 
chinery, appliances, furnishings, and equip- 
ment, 80 ALR2d 598. 



Liability of manufacturer or seller for in- 
jury caused by clothing, shoes, combs, and 
similar products, 80 ALR2d 702. 

Liability of manufacturer or seller of prod- 
uct sold in container or package for injury 
caused by container or packaging, 81 ALR2d 
229; 36 ALR4th 419. 

Liability of manufacturer or seller of con- 
tainer (botde, barrel, drum, tank, etc.) or 
other packaging material for injury caused 
thereby, 81 ALR2d 350; 36 ALR4th 419. 

Liability for injury from defective condi- 
tion or improper operation of lift bridge or 
drawbridge, 90 ALR2d 105. 

Products liability: manufacturer and 
dealer or distributor as joint or concurrent 
tortfeasors, 97 ALR2d 806. 

Products liability: manufacturer's respon- 
sibility for defective component supplied by 
another and incorporated in product, 3 
ALR3d 1016. 

Contributory negligence or assumption of 
risk as defense to action for personal injury, 
death, or property damage resulting from 
alleged breach of implied warranty, 4 ALR3d 
501. 

Statute of limitations: when cause of ac- 
tion arises on action against manufacturer or 
seller of product causing injury or death, 4 
ALR3d821. 

Seller's duty to test or inspect as affecting 
his liability for product-caused injury, 6 
ALR3d 12. 

Manufacturer's duty to test or inspect as 
affecting his liability for product-caused in- 
jury, 6 ALR3d 91. 

Liability of corporation for torts of subsid- 
iary, 7 ALR3d 1343. 

Products liability: strict liability in tort, 13 
ALR3d 1057; 46 ALR3d 240; 52 ALR3d 121. 

Liability for warranties and representa- 
tions in connection with the sale of 
air-conditioning equipment, 15 ALR3d 
1207. 

Privity of contract as essential in action 
against remote manufacturer or distributor 
for defects in goods not causing injury to 
person or to other property, 16 ALR3d 683. 

Products liability: in personam jurisdiction 
over nonresident manufacturer or seller un- 
der "long-arm" statutes, 19 ALR3d 13. 

Liability of builder-vendor or other ven- 
dor of new dwelling for loss, injury, or 
damage occasioned by defective condition 
thereof, 25 ALR3d 383. 



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Products liability: right of manufacturer or 
seller to contribution or indemnity from 
user of product causing injury or damage to 
third person, and vice versa, 28 ALR3d 943. 

Application of rule of strict liability in tort 
to person rendering services, 29 ALR3d 
1425; 100 ALR3d 1205. 

Products liability: extension of strict liabil- 
ity in tort to permit recovery by a third 
person who was neither a purchaser nor user 
of product, 33 ALR3d 415. 

Surveyor's liability for mistake in, or mis- 
representation as to accuracy of, survey of 
real property, 35 ALR3d 504. 

Aviation: helicopter accidents, 35 ALR3d 
707. 

Malpractice: attending physician's liability 
for injury caused by equipment furnished by 
hospital, 35 ALR3d 1068. 

Liability in connection with fire or explo- 
sion of explosives while being stored or 
transported, 35 ALR3d 1177. 

Liability for injury caused by spraying or 
dusting of crops, 37 ALR3d 833. 

Right of member of armed forces to re- 
cover from manufacturer or seller for injury 
caused by defective military material, equip- 
ment, supplies, or components thereof, 38 
ALR3d 1247. 

Liability of product endorser or certifier 
for product-caused injury, 39 ALR3d 181. 

Liability of one selling or distributing liq- 
uid or botded fuel gas, for personal injury, 
death, or property damage, 41 ALR3d 782. 

Liability of manufacturer or seller of 
power lawn mower for injuries to user, 41 
ALR3d 986. 

Products liability: alteration of product 
after it leaves hands of manufacturer or 
seller as affecting liability for product-caused 
harm, 41 ALR3d 1251. 

Liability of manufacturer, seller, or distrib- 
utor of motor vehicle for defect which 
merely enhances injury from accident other- 
wise caused, 42 ALR3d 560. 

Products liability: admissibility of evidence 
of other accidents to prove hazardous nature 
of product, 42 ALR3d 780. 

Rescue doctrine: applicability to situation 
created by breach of warranty, 44 ALR3d 
473. 

Attorney's liability, to one other than his 
immediate client, for consequences of neg- 
ligence in carrying out legal duties, 45 
ALR3d 1181; 61 ALR4th 464; 61 ALR4th 
615. 



Products liability: contributory negligence 
or assumption of risk as defense under doc- 
trine of strict liability in tort, 46 ALR3d 240. 

Liability of public accountant to third 
parties, 46 ALR3d 979. 

Liability for injury or death of pallbearer, 
48 ALR3d 1280. 

Products liability: proof of defect under 
doctrine of strict liability in tort, 51 ALR3d 8. 

Products liability: necessity and sufficiency 
of identification of defendant as manufac- 
turer or seller of product alleged to have 
caused injury, 51 ALR3d 1344. 

Necessity and propriety of instructing on 
alternative theories of negligence or breach 
of warranty, where instruction on strict lia- 
bility in tort is given in products liability case, 
52 ALR3d 101. 

Failure to warn as basis of liability under 
doctrine of strict liability in tort, 53 ALR3d 
239. 

Products liability; strict liability in tort 
where injury results from allergenic 
(side-effect) reaction to product, 53 ALR3d 
298. 

Strict liability in tort: liability of seller of 
used product, 53 ALR3d 337. 

Liability of hospital or medical practitio- 
ner under doctrine of strict liability in tort, 
or breach of warranty, for harm caused by 
drug, medical instrument, or similar device 
used in treating patient, 54 ALR3d 258. 

Products liability: product as unreasonably 
dangerous or unsafe under doctrine of strict 
liability in tort, 54 ALR3d 352. 

Liability of water supplier for damages 
resulting from furnishing impure water, 54 
ALR3d 936. 

Products liability: proof, under strict tort 
liability doctrine, that defect was present 
when product left hands of defendant, 54 
ALR3d 1079. 

Premises liability insurance: coverage as 
extending to liability for injuries or damage 
caused by product sold or rented by the 
insured and occurring away from the in- 
sured premises, 62 ALR3d 889. 

Liability of installer or maintenance com- 
pany for injury caused by failure of auto- 
matic elevator to level at floor, 63 ALR3d 
996. 

Liability for injury caused by fall of person 
into shaft, or by abrupt drop, sudden move- 
ment, or stopping between floors, of auto- 
matic passenger elevator, 64 ALR3d 950. 



83 



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Liability of installer or maintenance com- 
pany for injury caused by door of automatic 
passenger elevator, 64 ALR3d 1005. 

Tort liability of project architect for eco- 
nomic damages suffered by contractor, 65 
ALR3d 249. 

Promises or attempts by seller to repair 
goods as tolling statute of limitations for 
breach of warranty, 68 ALR3d 1277. 

Liability of manufacturer or seller for in- 
jury or death allegedly caused by use of 
contraceptive, 70 ALR3d 315. 

Admissibility of evidence of subsequent 
repairs or other remedial measures in prod- 
ucts liability cases, 74 ALR3d 1001; 38 
ALR4th 583. 

Statements on container that enclosed toy, 
game, sports equipment, or the like, is safe 
as affecting manufacturer's liability for in- 
jury caused by product sold, 74 ALR3d 1298. 

Products liability: liability for injury or 
death allegedly caused by defective tire, 81 
ALR3d 318. 

Products liability: liability for injury or 
death allegedly caused by defect in snowmo- 
bile or other recreational-purpose vehicle, 
81 ALR3d 394; 66 ALR4th 622. 

Products liability: liability for injury or 
death allegedly caused by defect in mobile 
home or trailer, 81 ALR3d 421. 

Liability of manufacturer, seller, or in- 
staller for personal injury caused by door 
glass, 84 ALR3d 877. 

Products liability: admissibility, against 
manufacturer, of product recall letter, 84 
ALR3d 1220. 

Products liability: drain cleaners, 85 
ALR3d 727. 

Liability of manufacturer or seller for per- 
sonal injury or property damage caused by 
television set, 89 ALR3d 210. 

Products liability: what statute of limita- 
tions governs actions based on strict liability 
in tort, 91 ALR3d 455. 

Products liability insurance coverage as 
extending only to product-caused injury to 
person or other property, as distinguished 
from mere product failure, 91 ALR3d 921. 

Statute of limitations: running of statute 
of limitations on products liability claim 
against manufacturer as affected by plain- 
tiff's lack of knowledge of defect allegedly 
causing personal injury or disease, 91 ALR3d 
991. 

Products liability: stoves, 93 ALR3d 99. 



Prospective buyer's release of prospective 
seller from liability for injuries resulting 
from trial use or inspection of product for 
sale, 93 ALR3d 1296. 

Liability of manufacturer or seller for in- 
jury or death allegedly caused by failure to 
warn regarding danger in use of vaccine or 
prescription drug, 94 ALR3d 748. 

Promotional efforts directed toward pre- 
scribing physician as affecting prescription 
drug manufacturer's liability for 
product-caused injury, 94 ALR3d 1080. 

Products liability: toys and games, 95 
ALR3d 390. 

Products liability: defective vehicular gas- 
oline tanks, 96 ALR3d 265. 

Products liability: forklift trucks, 95 
ALR3d541. 

Products liability: duty of manufacturer to 
equip product with safety device to protect 
against patent or obvious danger, 95 ALR3d 
1066. 

Products liability: modern cases determin- 
ing whether product is defectively designed, 
96 ALR3d 22. 

Products liability: defective vehicular gas- 
oline tanks, 96 ALR3d 265. 

Liability of packer, foodstore, or restau- 
rant for causing trichinosis, 96 ALR3d 451. 

Architect's liability for personal injury or 
death allegedly caused by improper or de- 
fective plans or design, 97 ALR3d 455. 

Products liability: personal injury or death 
allegedly caused by defect in aircraft or its 
parts, supplies, or equipment, 97 ALR3d 
627. 

Products liability: personal injury or death 
allegedly caused by defect in motorcycle or 
its parts, supplies, or equipment, 98 ALR3d 
317. 

Products liability: personal injury or death 
allegedly caused by defect in braking system 
in motor vehicle, 99 ALR3d 179. 

Liability of telephone company for injury 
by noise or electric charge transmitted over 
line, 99 ALR3d 628. 

When is person "engaged in the business" 
for purposes of doctrine of strict tort liability, 
99ALR3d671. 

Products liability: manufacturer's or sell- 
er's obligation to supply or recommend 
available safety accessories in connection 
with industrial machinery or equipment, 99 
ALR3d 693. 

Products liability: personal injury or death 



84 



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GENERAL PROVISIONS 



51-1-11 



allegedly caused by defect in steering system 
in motor vehicle, 100 ALRSd 158. 

Products liability: personal injury or death 
allegedly caused by defect in drive train 
system in motor vehicle, 100 ALR3d 471. 

Products liability: personal injury or death 
allegedly caused by defect in suspension 
system in motor vehicle, 100 ALR3d 912. 

Products liability: flammable clothing, 1 
ALR4th 251. 

Products liability: liability of manufacturer 
or seller for injury or death caused by defect 
in boat or its parts, supplies, or equipment, 1 
ALR4th411. 

Products liability: defective heating equip- 
ment, 1 ALR4th 748. 

Products liability in connection with pros- 
thesis or other product designed to be sur- 
gically implanted in patient's body, 1 ALR4th 
921. 

Products liability: industrial accidents in- 
volving conveyor belts or systems, 2 ALR4th 
262. 

Products liability: diethylstibestrol (DES), 
2ALR4th 1091. 

Liability of manufacturer or seller of 
snowthrower for injuries to user, 2 ALR4th 
1284. 

Products liability: defective vehicular win- 
dows, 3 ALR4th 489. 

Products liability: farm machinery, 4 
ALR4th 13. 

Products liability: personal injury or death 
allegedly caused by defect in electrical sys- 
tem in motor vehicle, 5 ALR4th 662. 

Products liability: swimming pools and 
accessories, 6 ALR4th 492. 

Products liability: clothes dryers, 6 
ALR4th 1262. 

Products liability: glue and other adhesive 
products, 7 ALR4th 155. 

Products liability: elevators, 7 ALR4th 852. 

Products liability: industrial presses, 8 
ALR4th 70. 

Applicability of comparative negligence 
doctrine to actions based on strict liability in 
tort, 9 ALR4th 633. 

Products liability: transformer and other 
electrical equipment, 10 ALR4th 854. 

Products liability: ladders, 11 ALR4th 
1118. 

Products liability: fertilizers, insecticides, 
pesticides, fungicides, weedkillers, and the 
like, or articles used in application thereof, 
12 ALR4th 462. 



Allowance of punitive damages in prod- 
ucts liability case, 13 ALR4th 52. 

Products liability: cranes and other lifting 
apparatuses, 13 ALR4th 476. 

Preemption of strict liability in tort by 
provisions of U.C.C. Article 2, 15 ALR4th 
791. 

Products liability: cement and concrete, 
15 ALR4th 1186; 60 ALR5th 413. 

Products liability; tire rims and wheels, 16 
ALR4th 137. 

Products liability: firefighting equipment, 
19 ALR4th 326. 

What statute of limitations applies to ac- 
tions for personal injuries based on breach 
of implied warranty under UCC provisions 
governing sales (UCC sec. 2-725(1)), 20 
ALR4th 915. 

"Concert of activity," "alternative liabili- 
ty," "enterprise liability," or similar theory as 
basis for imposing liability upon one or more 
manufacturers of defective uniform product, 
in absence of identification of manufacturer 
of precise unit or batch causing injury, 22 
ALR4th 183; 63 ALR5th 195. 

Products liability: mechanical or chain saw 
or components thereof, 22 ALR4th 206. 

Recovery, under strict liability in tort, for 
injury or damage caused by defects in build- 
ing or land, 25 ALR4th 351. 

Products liability: application of strict lia- 
bility in tort doctrine to agency merely fi- 
nancing sale or lease-purchase of personal 
property, 28 ALR4th 326. 

Products liability: animal feed or medi- 
cines, 29 ALR4th 1045. 

Bystander recovery for emotional distress 
at witnessing another's injury under strict 
products liability or breach of warranty, 31 
ALR4th 162. 

Successor products liability: form of busi- 
ness organization of successor or predeces- 
sor as affecting successor liability, 32 ALR4th 
196. 

Validity and construction of "sistership" 
clause of products liability insurance policy 
excepting from coverage cost of product 
recall or withdrawal of product from market, 
32 ALR4th 630. 

Strict products liability: liability for failure 
to warn as dependent on defendant's knowl- 
edge of danger, 33 ALR4th 368. 

Products liability: stud guns, staple guns, 
or parts thereof, 33 ALR4th 1189. 

Products liability: household appliances 



85 



51-1-11 



TORTS 



51-1-11 



relating to cleaning, washing, personal care, 
and water supply, quality and disposal, 34 
ALR4th 95. 

Products liability: household equipment 
relating to storage, preparation, cooking, 
and disposal of food, 35 ALR4th 663, super- 
seding §§31, 37, 39 [b, g, i, m] of 80 ALR2d 
598. 

Products liability: modern status of rule 
that there is no liability for patent or obvious 
dangers, 35 ALR4th 861. 

Products liability: equipment and devices 
direcdy relating to passengers' standing or 
seating safety in land carriers, 35 ALR4th 
1050. 

Products liability: home and office fur- 
nishings, 36ALR4th 170. 

Products liability: modern cases on explo- 
sion or breakage of beverage botties, 36 
ALR4th 419. 

Products liability: Admissibility of evi- 
dence of postinjury warning measures un- 
dertaken by defendant, 38 ALR4th 583. 

Products liability: duty of manufacturer or 
seller of component part incorporated in 
another product to warn of dangers, 39 
ALR4th 6. 

Products liability: inhalation of asbestos, 
39 ALR4th 399. 

Products liability: automobile manufactur- 
er's liability for injuries caused by repairs 
made under manufacturer's warranty, 40 
ALR4th 1218. 

Products liability: inconsistency of verdicts 
on separate theories of negligence, breach 
of warranty, or strict liability, 41 ALR4th 9. 

Validity and construction of products lia- 
bility statute precluding or limiting recovery 
where product has been altered or modified 
after leaving hands of manufacturer or 
seller, 41 ALR4th 47. 

Products liability: alcoholic beverages, 42 
ALR4th 253. 

Products liability: construction materials 
or insulation containing formaldehyde, 45 
ALR4th 751. 

Products liability: liability of manufacturer 
or seller as affected by failure of subsequent 
party in distribution chain to remedy or 
warn against defect of which he knew, 45 
ALR4th 777. 

Products liability: perfumes, colognes, or 
deodorants, 46 ALR4th 1185. 

Products liability: perfumes, colognes, or 
deodorants, 46 ALR4th 1197. 



Products liability: admissibility of defen- 
dant's evidence of industry custom or prac- 
tice in strict liability action, 47 ALR4th 621. 

Future disease or condition, or anxiety 
relating thereto, as element of recovery, 50 
ALR4th 13. 

Negligence in preparing abstract of tide as 
ground of liability to one other than person 
ordering abstract, 50 ALR4th 314. 

Products liability: sufficiency of evidence 
to support product misuse defense in actions 
concerning athletic, exercise, or recre- 
ational equipment, 50 ALR4th 1226. 

Products liability: admissibility of evidence 
of absence of other accidents, 51 ALR4th 
1186. 

Products liability: sufficiency of evidence 
to support product misuse defense in actions 
concerning wearing apparel, 52 ALR4th 276. 

Attorneys' fees in products liability suits, 
53 ALR4th 414. 

Products liability: personal soap, 54 
ALR4th 574. 

Duty and liability of subcontractor to em- 
ployee of another contractor using equip- 
ment or apparatus of former, 55 ALR4th 
725. 

Products liability: pertussis vaccine manu- 
facturers, 57 ALR4th 911. 

Commercial renter's negligence liability 
for customer's personal injuries, 57 ALR4th 
1186. 

Products liability: sufficiency of evidence 
to support product misuse defense in actions 
concerning food, drugs, and other products 
intended for ingestion, 58 ALR4th 7. 

Products liability: sufficiency of evidence 
to support product misuse defense in actions 
concerning cosmetics and other personal 
care products, 58 ALR4th 40. 

Products liability: sufficiency of evidence 
to support product misuse defense in actions 
concerning paint, cleaners, or other chemi- 
cals, 58 ALR4th 76. 

Products liability: sufficiency of evidence 
to support product misuse defense in actions 
concerning gas and electric appliances, 58 
ALR4th 131. 

Products liability: sufficiency of evidence 
to support product misuse defense in actions 
concerning bottles, cans, storage tanks, or 
other containers, 58 ALR4th 160. 

Products liability: toxic shock syndrome, 
59 ALR4th 50. 

Products liability: sufficiency of evidence 



86 



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GENERAL PROVISIONS 



51-1-11 



to support product misuse defense in actions 
concerning ladders and scaffolds, 59 
ALR4th 73. 

Products liability: sufficiency of evidence 
to support product misuse defense in actions 
concerning weapons and ammunition, 59 
ALR4th 102. 

Products liability: polyvinyl chloride, 59 
ALR4th 129. 

Products liability: sufficiency of evidence 
to support product misuse defense in actions 
concerning agricultural implements and 
equipment, 60 ALR4th 678. 

Products liability: electricity, 60 ALR4th 
732. 

Products liability: overhead garage doors 
and openers, 61 ALR4th 94. 

Products liability: building and construc- 
tion lumber, 61 ALR4th 121. 

Products liability: sufficiency of evidence 
to support product misuse defense in actions 
concerning building components and mate- 
rials, 61 ALR4th 156. 

Products liability: "fireman's rule" as de- 
fense, 62 ALR4th 727. 

Products liability: sufficiency of evidence 
to support product misuse defense in actions 
concerning automobiles, boats, aircraft, and 
other vehicles, 63 ALR4th 18. 

Products liability: mascara and other eye 
cosmetics, 63 ALR4th 105. 

Live animal as "product" for purposes of 
strict products liability, 63 ALR4th 127. 

Products liability: product misuse defense, 
65 ALR4th 263. 

Strict products liability: product malfunc- 
tion or occurrence of accident as evidence of 
defect, 65 ALR4th 346. 

Products liability: sudden or unexpected 
acceleration of motor vehicle, 66 ALR4th 20. 

Liability of manufacturer of oral live polio 
(Sabin) vaccine for injury or death from its 
administration, 66 ALR4th 83. 

Liability for injury incurred in operation 
of power golf cart, 66 ALR4th 622. 

Products liability: injury caused by prod- 
uct as a result of being tampered with, 67 
ALR4th 964. 

Products liability: personal jurisdiction 
over nonresident manufacturer of compo- 
nent incorporated in another product, 69 
ALR4th 14. 

Products liability: what is an "unavoidably 
unsafe" product, 70 ALR4th 16. 

Strict products liability: recovery for dam- 
age to product alone, 72 ALR4th 12. 



Products liability: motor vehicle exhaust 
systems, 72 ALR4th 62. 

Products liability: industrial refrigeration 
equipment, 72 ALR4th 90. 

Products liability: scaffolds and scaffolding 
equipment, 74 ALR4th 904. 

Products liability: tractors, 75 ALR4th 312. 

Products liability: contributory negligence 
or assumption of risk as defense in negli- 
gence action based on failure to provide 
safety device for product causing injury, 75 
ALR4th 443. 

Products liability: contributory negligence 
or assumption of risk as defense in action for 
strict liability or breach of warranty based on 
failure to provide safety device for product 
causing injury, 75 ALR4th 538. 

Forum non conveniens in products liabil- 
ity cases, 76 ALR4th 22. 

Products liability: bicycles and accessories, 
76ALR4th 117. 

Products liability: exercise and related 
equipment, 76 ALR4th 145. 

Products liability: trampolines and similar 
devices, 76 ALR4th 171. 

Products liability: competitive sports 
equipment, 76 ALR4th 201. 

Products liability: skiing equipment, 76 
ALR4th 256. 

Products liability: general recreational 
equipment, 77 ALR4th 1121. 

Products liability: mechanical amusement 
rides and devices, 77 ALR4th 1152. 

Burden of proving feasibility of alternative 
safe design in products liability action based 
on defective design, 78 ALR4th 154. 

Products liability: lubricating products 
and systems, 80 ALR4th 972. 

Products liability: all-terrain vehicles 
(ATV's),83ALR4th 70. 

Liability of auctioneer under doctrine of 
strict products liability, 83 ALR4th 1188. 

Products liability: hair straighteners and 
relaxants, 84 ALR4th 1090. 

Products liability: cutting or heating 
torches, 84 ALR4th 1123. 

Liability for injury or death allegedly 
caused by spoilage or contamination of bev- 
erage, 87 ALR4th 804. 

Consequential loss of profits from injury 
to property as element of damages in prod- 
ucts liability, 89 ALR4th 11. 

Liability for injury or death allegedly 
caused by foreign substance in beverage, 90 
ALR4th 12. 



87 



51-1-11.1 



TORTS 



51-1-11.1 



Liability for injury or death allegedly 
caused by foreign object in food or food 
product, 1 ALR5th 1. 

Products liability of endorser, trade associ- 
ation, certifier, or similar party who ex- 
presses approval of product, 1 ALR5th 431. 

Liability for injury or death allegedly 
caused by spoilage, contamination, or other 
deleterious condition of food or food prod- 
uct, 2 ALR5th 1. 

Liability for injury or death allegedly 
caused by food product containing object 
related to, but not intended to be present in, 
product, 2 ALR5th 189. 

Products Liability: Roofs and roofing ma- 
terials, 3 ALR5th 851. 

Products Liability: prefabricated build- 
ings, 4 ALR5th 667. 

Products Liability: application of strict lia- 
bility doctrine to seller of used product, 9 
ALR5th 1. 

Breach of assumed duty to inspect prop- 
erty as ground for liability to third party, 13 
ALR5th 289. 

Products liability: Failure to provide prod- 
uct warning or instruction in foreign lan- 
guage or to use universally accepted picto- 
graphs or symbols, 27 ALR5th 697. 

Validity and construction of statute termi- 
nating right of action for product-caused 
injury at fixed period after manufacture, 
sale, or delivery of product, 30 ALR5th 1 . 

Products liability: Cigarettes and other to- 
bacco products, 36 ALR5th 541. 

Presumption or inference, in products 



liability action based on failure to warn, that 
user of product would have heeded an ade- 
quate warning had one been given, 38 
ALR5th 683. 

Products liability: defective motor vehicle 
air bag systems, 39 ALR5th 267. 

Liability under state law for injuries result- 
ing from defective automobile seatbelt, 
shoulder harness, or restraint system, 48 
ALR5th 1. 

Causes of action governed by limitations 
period in UCC § 2-725, 49 ALR5th 1. 

Products liability: recovery for injury or 
death resulting from intentional inhalation 
of product's fumes or vapors to produce 
intoxicating or similar effect, 50 ALR5th 
275. 

Third-party beneficiaries of warranties un- 
der UCC § 2-318, 50 ALR5th 327. 

Liability of manufacturer or seller for in- 
jury or death allegedly caused by use of 
contraceptive, 54 ALR5th 1. 

Federal pre-emption of state common-law 
products liability claims pertaining to motor 
vehicles, 97 ALR Fed. 853. 

Federal pre-emption of state common-law 
products liability claims pertaining to to- 
bacco products, 97 ALR Fed. 890. 

Federal pre-emption of state common-law 
products liability claims pertaining to drugs, 
medical devices, and other health-related 
items, 98 ALR Fed. 124. 

Federal pre-emption of state common-law 
products liability claims pertaining to pesti- 
cides, 101 ALR Fed. '887. 



51-1-11.1. Liability of product seller as a manufacturer. 

(a) As used in this Code section, the term "product seller" means a 
person who, in the course of a business conducted for the purpose leases or 
sells and distributes; installs; prepares; blends; packages; labels; markets; or 
assembles pursuant to a manufacturer's plan, intention, design, specifica- 
tions, or formulation; or repairs; maintains; or otherwise is involved in 
placing a product in the stream of commerce. This definition does not 
include a manufacturer which, because of certain activities, may addition- 
ally be included within all or a portion of the definition of a product seller. 

(b) For purposes of a product liability action based in whole or in part on 
the doctrine of strict liability in tort, a product seller is not a manufacturer 
as provided in Code Section 51-1-11 and is not liable as such. 

(c) Nothing contained in this Code section shall be construed to grant a 
cause of action in strict liability in tort or any other legal theory or to affect 
the right of any person to seek and obtain indemnity or contribution. 



88 



51-1-12 



GENERAL PROVISIONS 



51-1-12 



(d) This Code section shall apply to all causes of action accruing on or 
after July 1, 1987. (Code 1981, § 51-1-11.1, enacted by Ga. L. 1987, p. 1152, 
§ 1.) 



Law reviews. — For article, "Products 
Liability Law in Georgia Including Recent 



Developments," see 43 Mercer L. Rev. 27 
(1991). 



JUDICIAL DECISIONS 



Strict liability confined to actual manufac- 
turers. — This section confines strict liability 
to actual manufacturers — those entities that 
have an active role in the production, de- 
sign, or assembly of products and place them 
in the stream of commerce, such that the 
category of "ostensible manufacturer" no 
longer exists in Georgia. Accordingly, pro- 
pane gas retailer and propane gas distribu- 
tor were not manufacturers for purposes of 
this section. Freeman v. United Cities Pro- 
pane Gas of Ga., Inc., 807 F. Supp. 1533 
(M.D. Ga. 1992). 

Product "seller" rather than "manufactur- 
er." — A cause of action for strict liability 
can be maintained only against the manufac- 
turer of a product. A mere "product seller" 
is not a manufacturer, and is not liable as a 
manufacturer on grounds of strict liability. 
Ream Tool Co. v. Newton, 209 Ga. App. 226, 
433S.E.2d67 (1993). 

An entity which merely affixes its label to a 
product and sells it under its name is a 
product seller rather than a manufacturer 
under this section and is not liable in a 
product liability action based on the doc- 
trine of strict liability in tort. Alltrade, Inc. v. 
McDonald, 213 Ga. App. 758, 445 S.E.2d 856 
(1994); Buford v. Toys R' Us, Inc., 217 Ga. 
App. 565, 458 S.E.2d 373 (1995). 

Company which imported and marketed 



pliers and ordered them by describing the 
tools it wanted to trading companies which 
secured them from foreign manufacturers 
was a product seller, not a manufacturer. 
Schneider v. Tri Star Int'l, Inc., 223 Ga. App. 
85, 476S.E.2d846 (1996). 

A restaurant selling coffee made in a 
coffee maker in accordance with the manu- 
facturer's specifications was a "product sell- 
er" and could not be held liable to plaintiff 
who sustained burns from spilled coffee. 
Barnett v. Leiserv, Inc., 968 F. Supp. 690 
(N.D. Ga. 1997), aff'd, 137 F.3d 1356 (11th 
Cir. 1998). 

A corporation which purchased the assets 
of a manufacturer and sold, but did not 
manufacture, a product of the design man- 
ufactured by its predecessor, was a "product 
seller" under this section, not a "manufac- 
turer" subject to strict liability under para- 
graph § 51-1-1 1(b)(1) for any defect in the 
product. Farmex Inc. v. Wainwright, 269 Ga. 
548,501 S.E.2d802 (1998). 

A distributor of bagels baked by another 
was not an ostensible manufacturer where 
there was no evidence that the recipe or 
formula for the bagels was based on the 
distributor's own specifications. Thomasson 
v. Rich Prods. Corp., 232 Ga. App. 424, 502 
S.E.2d289 (1998). 



RESEARCH REFERENCES 



ALR. — Products liability: seller's right to 
indemnity from manufacturer, 79 ALR4th 
278. 

Common-law strict liability in tort of prior 
landowner or lessee to subsequent owner for 

51-1-12. Liability for ratifying tort. 



contamination of land with hazardous waste 
resulting from prior owner's or lessee's ab- 
normally dangerous or ultrahazardous activ- 
ity, 13 ALR5th 600. 



By ratification of a tort committed for his own benefit, the ratifier 
becomes as liable as if he had commanded that it be committed. A person 



89 



51-1-12 



TORTS 



51-1-12 



ratifying a tort does not become liable, however, if the act was done for the 
benefit of a third person. (Orig. Code 1863, § 2906; Code 1868, § 2912; 
Code 1873, § 2963; Code 1882, § 2963; Civil Code 1895, § 3820; Civil Code 
1910, § 4416; Code 1933, § 105-109.) 



JUDICIAL DECISIONS 



Analysis 



General Consideration 
Applicability to Specific Cases 



General Consideration 

There can be no ratification unless the 
act was done for the master, or at least, 
purported to be done for him. 
Reddy-Waldhauer-Maffett Co. v. Spivey, 53 
Ga. App. 117, 185 S.E. 147 (1936); Parry v. 
Davison-Paxon Co., 87 Ga. App. 51, 73 
S.E.2d59 (1952). 

There is no such thing as a master assum- 
ing, by ratification, liability for an act of 
another in which the master had no part. 
Reddy-Waldhauer-Maffett Co. v. Spivey, 53 
Ga. App. 117, 185 S.E. 147 (1936); Parry v. 
Davison-Paxon Co., 87 Ga. App. 51, 73 
S.E.2d59 (1952). 

Ratification requires full knowledge of 
material facts. — As a general rule, in order 
that a ratification of an unauthorized act or 
transaction may be valid and binding, it is 
essential that the principal have full knowl- 
edge, at the time of the ratification, of all 
material facts and circumstances relative to 
the unauthorized act or transaction, or that 
some one authorized to represent the prin- 
cipal, except the agent, have such knowl- 
edge, unless the principal is willfully igno- 
rant or purposely refrains from seeking 
information. Liberty Mut. Ins. Co. v. 
Lipscomb, 56 Ga. App. 15, 192 S.E. 56 
(1937). 

Ratification of tort is question of inten- 
tion, which should be referred to a jury 
when there is in the petition a clear allega- 
tion of facts tending to support that allega- 
tion. Estridge v. Hanna, 55 Ga. App. 159, 189 
S.E. 364 (1936). 

Intention to ratify may often be presumed 
by the law from conduct of principal, and 
that presumption may be conclusive, even 
against the actual intention of the principal, 
where his conduct has been such that it 
would be inequitable to others to permit 



him to assert that he has not ratified the 
unauthorized act of his agent. Liberty Mut. 
Ins. Co. v. Lipscomb, 56 Ga. App. 15, 192 S.E. 
56 (1937). 

Retention of servant after commission of 
tort may be implied ratification. Gasway v. 
Atlanta & W.P.R.R., 58 Ga. 216 (1877). 

Retention if servant acted exclusively for 
himself. — Where the employee was acting 
exclusively for himself and was not acting at 
all for the master, and did not profess to be 
acting for the employer, the mere retaining 
of the servant after knowledge of his tort 
would not constitute ratification binding the 
master. Reddy-W T aldhauer-MafTett Co. v. 
Spivey, 53 Ga. App. 117, 185 S.E. 147 (1936); 
Parry v. Davison-Paxon Co., 87 Ga. App. 51, 
73S.E.2d59 (1952). 

Cited in Harrison v. Kiser, 79 Ga. 588, 4 
S.E. 320 (1887); Crockett Bros. v. Sibley, 3 
Ga. App. 554, 60 S.E. 326 (1908); Smith v. 
Colonial Stores, Inc., 72 Ga. App. 186, 33 
S.E.2d 360 ( 1945); Wren Mobile Homes, Inc. 
v. Midland-Guardian Co., 117 Ga. App. 22, 
159S.E.2d734 (1967). 

Applicability to Specific Cases 

Conduct beyond scope of employment. — 

When the conduct of the chauffeur took 
him outside the scope of his employment 
and when his conduct was a complete depar- 
ture, instead of a deviation or detour inci- 
dental to his employment, the mere reten- 
tion of the employee, after knowledge of 
all the facts, would not constitute ratifi- 
cation on the part of the employer. 
Reddy-Waldhauer-Maffett Co. v. Spivey, 53 
Ga. App. 117, 185 S.E. 147 (1936). 

Payment for services rendered. — Where 
the doctor to whom a heart was taken for the 
purpose of dissection was either specially or 
generally employed by the defendant insur- 



90 



51-1-13 



GENERAL PROVISIONS 



51-1-13 



ance company to dissect the heart of the 
deceased husband of the plaintiff, and that 
he did dissect and mutilate the said heart, all 
without the knowledge or consent of the 
plaintiff, and thereafter reported to the in- 
surance company that he had done so, and 
the insurance company paid him for his 
services in the matter, a cause of action 
against the defendant insurance company 
existed. Liberty Mut. Ins. Co. v. Lipscomb, 56 
Ga. App. 15, 192 S.E. 56 (1937). 

Payment alone insufficient if made with- 
out knowledge of acts. — Where the desig- 
nated examiner of the defendant insurance 
company directed defendant A to employ 
defendant B, a doctor, to remove the heart 
of the deceased husband of the plaintiff and 
deliver it to another doctor for the purpose 
of dissection, without the knowledge or con- 
sent of the plaintiff, and that the second 
doctor did dissect the said heart, and that 
the insurance company ratified the acts of A 
and B by paying the two doctors for their 
services, but the insurance company did not 
have any knowledge of the act of A or B, or 
received or retained any benefit therefrom, 
and where defendant A is joined with defen- 
dant B and the insurance company as joint 
tort-feasors in an action for damages on 



account of the alleged unauthorized re- 
moval, and mutilation of the said heart, a 
cause of action as to the acts of A and B, 
against the defendant insurance company 
under any theory of agency or of ratification 
of an unauthorized act did not exist. Liberty 
Mut. Ins. Co. v. Lipscomb, 56 Ga. App. 15, 
192 S.E. 56 (1937). 

Separate business scheme by servants. — 
Petition set forth* no cause of action against 
the defendant employer on the grounds of 
condonation and ratification of the acts of its 
employees, where the two employees had 
departed from the prosecution of the mas- 
ter's business and begun a separate scheme 
of their own, from which no benefit could 
possibly inure to the master. Parry v. 
Davison-Paxon Co., 87 Ga. App. 51, 73 
S.E.2d59 (1952). 

Statement that insurer would pay. — The 
mere statement of the defendant that his 
insurance company would pay for the dam- 
ages to the automobile would not in itself 
authorize a finding that he ratified the acts 
of the nephew of cropper who worked his 
farm and would not in itself authorize a 
finding that the defendant had admitted 
liability. Cox v. Estes, 96 Ga. App. 649, 101 
S.E.2d 107 (1957). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 74 Am. Jur. 2d, Torts, § 65 
et seq. 

CJ.S. — 86 C.J.S., Torts, § 33. 

ALR. — Liability of wife for husband's 
torts, 12 ALR 1459. 

What amounts to ratification by principal 
or master of libel or slander by agent or 
servant, 139 ALR 1066. 

Liability of hospital or sanitarium for neg- 
ligence of physician or surgeon, 69 ALR2d 
305. 

Parents' liability for injury or damage in- 



tentionally inflicted by minor child, 54 
ALR3d 974. 

Liability of estate for tort of executor, 
administrator, or trustee, 82 ALR3d 892. 

Principal's liability for punitive damages 
because of false arrest or imprisonment, or 
malicious prosecution, by agent or em- 
ployee, 93 ALR3d 826. 

Liability of hospital or sanitarium for neg- 
ligence of physician or surgeon, 51 ALR4th 
235. 



51-1-13. Cause of action for physical injury; intention considered in 
assessing damages. 

A physical injury done to another shall give a right of action to the 
injured party, whatever may be the intention of the person causing the 
injury, unless he is justified under some rule of law. However, intention shall 
be considered in the assessment of damages. (Orig. Code 1863, § 2910; 



91 



51-1-13 



TORTS 



51-1-13 



Code 1868, § 2917; Code 1873, § 2968; Code 1882, § 2968; Civil Code 
1895, § 3826; Civil Code 1910, § 4422; Code 1933, § 105-601.) 



Law reviews. — For comment on Tucker v. 
Howard L. Carmichael Be Sons, 208 Ga. 201, 
65 S.E.2d 909 (1951), holding child may 
maintain action for prenatal injury caused 
by negligence of another, see 14 Ga. B.J. 249 
(1951). For comment on Wright v. Wright, 
85 Ga. App. 721, 70 S.E.2d 152 (1952), see 
15 Ga. BJ. 83 (1952). For comment on 
Plantation Pipe Line Co. v. Hornbuckle, 212 
Ga. 504, 93 S.E.2d 727 (1956), holding that 
if a child born after an injury occurring at 



any period in its prenatal life can prove a 
tortious effect it will be allowed the right to 
recover, see 19 Ga. BJ. 87 (1956). For com- 
ment on Hornbuckle v. Plantation Pipe Line 
Co., 212 Ga. 504, 93 S.E.2d 727 (1956), 
recognizing child's right of action for prena- 
tal injuries suffered prior to viability, see 8 
Mercer L. Rev. 377 (1957). For comment on 
Mims v. Boland, 110 Ga. App. 477, 138 
S.E.2d 902 (1964), see 2 Ga. St. BJ. 133 
(1965). 



JUDICIAL DECISIONS 



Analysis 

General Consideration 
Jury Instructions 



General Consideration 

Cause of action for personal injury. — 

Actions ex delicto both by the common law 
and the law of Georgia unquestionably in- 
clude actions for injuries to the person. 
Goebel v. Hodges, 83 Ga. App. 574, 64 S.E.2d 
207 (1951). 

Cause of action for prenatal injury. — If a 
child born after an injury sustained at any 
period of its prenatal life can prove the 
effect on it of a tort, it has a right to recover. 
Hornbuckle v. Plantation Pipe Line Co., 212 
Ga. 504, 93 S.E.2d 727 (1956). 

Lack of consent for medical treatment. — 
A cause of action for battery exists when 
objected-to treatment is performed without 
the consent of, or after withdrawal of con- 
sent by, the patient; there is no authority for 
holding that a medical consent form signed 
for one operation or treatment is valid for 
another operation later and elsewhere. 
Joiner v. Lee, 197 Ga. App. 754, 399 S.E.2d 
516 (1990). 

Cause not barred merely because arising 
only due to special condition of plaintiff. — 
Where a married woman in a state of preg- 
nancy suffers physical injuries which are 
caused by another's negligence, but which 
may not have resulted except for her deli- 
cate condition, she is not to be debarred 
from recovering damages from the person 
guilty of the negligence for the injuries 
which are the legal and natural result of the 



act done. Saul Klenberg Co. v. Mrozinski, 78 
Ga. App. 59, 50 S.E.2d 247 (1948). 

Trespasser's action for injury good only if 
harm maliciously inflicted. — When a plain- 
tiff seeks to hold the wife liable in damages 
for a wrong inflicted by the husband, and 
alleges no more to establish his legal status at 
the time of the alleged injury than infer- 
ences that he was a trespasser upon lands of 
the defendants, the plaintiff must clearly 
show that the alleged injuries were mali- 
ciously inflicted at the command or counsel 
of the wife or that she aided and abetted in 
the injuries received, in order to state a 
cause of action against her. Brigman v. 
Brenner, 206 Ga. 222, 56 S.E.2d 471 (1949). 

Filing of suit for personal injury gives 
defendant right to reasonably investigate 
claim. — Where one elects to sue another 
for injuries he receives, it has been recog- 
nized for a limited purpose that the plaintiff 
may waive his right to privacy and the defen- 
dant has the right to conduct a reasonable 
investigation of the plaintiff in order to 
ascertain the validity of the plaintiff's claim. 
Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 
648, 188S.E.2d911 (1972), later appeal, 130 
Ga. App. 254, 202 S.E.2d 701 (1973). 

Plaintiff impliedly waives right of privacy 
against such investigation. — The right of 
privacy may be implicitly waived and it is 
waived by one who files an action for dam- 
ages resulting from a tort to the extent of the 



92 



51-M3 



GENERAL PROVISIONS 



51-1-13 



defendant's intervening right to investigate 
and ascertain for himself the true state of 
injury. The reasonableness of the investiga- 
tion under the circumstances is a question 
for the jury. Ellenberg v. Pinker ton's Inc., 
125 Ga. App. 648, 188 S.E.2d 911 (1972), 
later appeal, 130 Ga. App. 254, 202 S.E.2d 
701 (1973). 

Use of opprobrious words as justification. 
— Opprobrious words or abusive language 
are to be left to the jury, in an action for 
assault and battery, to determine whether 
the battery was justifiable, under this section. 
Thompson v. Shelverton, 131 Ga. 714, 63 
S.E. 220 (1908). 

Injury caused by mental patient. — Where 
the course of treatment of a mental patient 
involves an exercise of control by a physician 
who knows or should know that the patient is 
likely to cause bodily harm to others, an 
independent duty arises from that relation- 
ship and falls upon the physician to exercise 
that control with such reasonable care as to 
prevent harm to others at the hands of the 
patient. Bradley Center, Inc. v. Wessner, 161 
Ga. App. 576, 287 S.E.2d 716, aff'd, 250 Ga. 
199, 296 S.E.2d 693 (1982). 

Remedies for fourth amendment violation 
by police officers. — See Gilmere v. City of 
Atlanta, 737 F.2d 894 (11th Cir. 1984), aff'd 
in part and rev'd and vacated in part en 
banc, 774 F.2d 1495 (11th Cir. 1985), cert, 
denied, 476 U.S. 1115, 106 S. Ct. 1970, 90 L. 
Ed. 2d 654 (1986). 

Summary judgment inappropriate. — In a 
case where a merchant's employee detained 
three suspected shoplifters, and the detain- 
ees brought claims of assault and battery, 
summary judgment in favor of the merchant 
was inappropriate where the plaintiffs testi- 
fied that the employee detained them an 
unreasonable amount of time and was phys- 
ically and verbally abusive. Brown v. Super 
Disc. Mkts., Inc., 223 Ga. App. 174, 477 
S.E.2d839 (1996). 

Cited in Western & A.R.R. v. Sawtell, 65 
Ga. 235 (1880); Berknerv. Dannenberg, 116 
Ga. 954, 43 S.E. 463, 60 L.R.A. 559 (1903); 
Dodd v. Slater, 101 Ga. App. 362, 114 S.E.2d 
170 (1960); Bowling v. Janmar, Inc., 142 Ga. 
App. 53, 234 S.E.2d 849 (1977) ; Bendiburg v. 
Dempsey, 707 F. Supp. 1318 (N.D. Ga. 1989); 
Telfair v. Gilberg, 868 F. Supp. 1396 (S.D. Ga. 
1994), aff'd, 87 F.3d 1330 (11th Cir. 1996). 



Jury Instructions 

Jury instruction on mitigating circum- 
stances as possible justification appropriate. 

— The court erred in failing to charge the 
jury upon written request, in an action for 
damages on account of an assault and bat- 
tery, that defendant could give in evidence 
any opprobrious words or abusive language 
used by the plaintiff to its servant or agent, 
in order to justify the servant or agent's 
conduct or mitigate the damages, and it was 
for the jury to determine whether such 
language amounted to a justification or only 
to a mitigation of damages recoverable. Ex- 
position Cotton Mills v. Crawford, 67 Ga. 
App. 135, 19 S.E.2d 835 (1942). 

Jury instruction on relative strength of 
parties appropriate. — In an action for 
damages for assault and battery the court 
erred in failing to charge the jury, upon 
written request, that, in considering the 
question as to whether or not the battery was 
proportioned to the provocation, it could 
take into consideration the relative strength 
of the plaintiff and defendant's employee, 
where the plaintiff was an able-bodied man 
of 34 years, while the employee was 69 years 
old, and afflicted at the time with cancer. 
Exposition Cotton Mills v. Crawford, 67 Ga. 
App. 135, 19 S.E.2d 835 (1942). 

Jury instruction based on this section er- 
roneous in simple negligence case. — In a 
suit for personal injuries based on simple 
negligence in which compensatory damages 
only were sued for, it was error for the court 
to give in charge to the jury the provisions of 
this section. Georgia Ry. & Power Co. v. 
Bryans, 35 Ga. App. 713, 134 S.E. 787 
(1926); Hirsch v. Plowden, 35 Ga. App. 763, 
134 S.E. 833 (1926); Rozier v. Folsom, 53 Ga. 
App. 53, 185 S.E. 140 (1936); Collins v. 
Porterfield, 102 Ga. App. 294, 116 S.E.2d 
105 (1960). 

The vice of charging this section in a 
negligence case lies in the fact that it allows 
the jury to consider the defendant's inten- 
tions in the assessment of damages, where 
no damages based on willfulness or malice 
are sought. Collins v. Porterfield, 102 Ga. 
App. 294, 116 S.E.2d 105 (1960). 

Jury instruction based on this section er- 
roneous without intent. A charge based 
upon this section should not have been 
given where there was no allegation and no 
evidence that injury was intentional. Rozier 



93 



51-1-13 



TORTS 



51-1-13 



Jury Instructions (Cont'd) 

v. Folsom, 53 Ga. App. 53, 185 S.E. 140 
(1936). 



RESEARCH REFERENCES 



Am. Jut. 2d. — 74 Am. Jur. 2d, Torts, §§ 2, 
6. 

C.J.S. — 86 C.J.S., Torts, §§ 23, 90. 

ALR. — Liability for property lost or sto- 
len at the time of a personal injury, 1 ALR 
737. 

Liability of electric light or power com- 
pany for injuries to employee of patron, 9 
ALR 174. 

Liability of master for injury inflicted by 
servant with firearms, 10 ALR 1087; 75 ALR 
1176. 

Liability of one maintaining electric wire 
over or near highway for injury due to 
breaking of wire by fall of tree or limb, 19 
ALR 801. 

Liability for injury due to condition of 
trees in or overhanging highway, 19 ALR 
1021; 49 ALR 840. 

Injury to one while coasting in the street, 
20 ALR 1433; 109 ALR 941. 

Competency of hospital physician or at- 
tendant to testify as to condition of patient, 
22 ALR 1217. 

Liability for injury to window washer, 28 
ALR 622. 

Liability for injury to one in street by 
object falling from window, 29 ALR 77; 53 
ALR 462. 

Liability of one starting bonfire for burn- 
ing of child, 36 ALR 297. 

Constitutionality of statute or ordinance 
denying remedy for personal injury as a 
result of simple negligence, 36 ALR 1400. 

Liability of one whose acts cause collection 
of, or disorder in, crowd for injuries incident 
thereto, 38 ALR 1531. 

Release by, or judgment in favor of, per- 
son injured as barring action for his death, 
39 ALR 579. 

Recovery for physical consequences of 
fright resulting in a physical injury, 40 ALR 
983; 76 ALR 681; 98 ALR 402. 

Measure of damages in action for personal 
injuries commenced by the deceased in his 
lifetime and revived by his personal repre- 
sentative, 42 ALR 187. 

Liability of carrier for injury to passenger 



due to construction of floor of car or vessel 
on different levels, 48 ALR 1424. 

Liability for unintentionally shooting per- 
son while hunting, 53 ALR 1205. 

Civil liability for death or injury in prize 
fights, 71 ALR 189. 

Liability for damage to person or property 
by fall of tree, 72 ALR 615. 

Admissibility of evidence, and propriety 
and effect of questions, statements, com- 
ments, etc., tending to show that defendant 
in a personal-injury or death action carries 
liability insurance, 74 ALR 849. 

Recovery for physical consequences of 
fright resulting in physical injury, 76 ALR 
681; 98 ALR 402. 

Liability for injury to one riding on run- 
ning board of automobile or other place 
outside body of car, 80 ALR 553; 104 ALR 
312; 44ALR2d 238. 

Reliance on particular kind of treatment 
in case of injury as affecting amount of 
recovery against one causing injury, 82 ALR 
491. 

Gas company's liability for injury or dam- 
age by escaping gas, 90 ALR 1082; 138 ALR 
870. 

Admissibility of evidence, and propriety 
and effect of questions, statements, com- 
ments, etc., tending to show that defendant 
in a personal-injury or death action carries 
liability insurance, 95 ALR 388; 105 ALR 
1319; 4 ALR 2d 761. 

What amounts to claim for personal injury 
within statute or ordinance requiring notice 
as condition of municipal liability, 97 ALR 
118. 

Liability of county for torts in connection 
with activities which pertain, or are claimed 
to pertain, to private or proprietary func- 
tions, 101 ALR 1166; 16 ALR2d 1079. 

Release or compromise by parent of cause 
of action for injuries to child as affecting 
right of child, 103 ALR 500. 

Judgment in action for personal injuries 
to or death of one person as res judicata or 
conclusive of matters there litigated subse- 
quent action for personal injury to or death 



94 



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of another person in the same accident, 104 
ALR 1476. 

Sufficiency of complaint in action against 
railroad for killing or injuring person or 
livestock as regards time, and direction and 
identification of train, 115 ALR 1074. 

Liability of owner or operator of public 
gasoline filling station for injury to person or 
damage to property, 116 ALR 1205. 

Liability of churches or other religious 
societies for torts causing personal injury or 
death, 124 ALR 814. 

What amounts to a personal injury within 
venue statute, 134 ALR 751. 

Liability for injury to person or damage to 
property as result of "blackout,", 136 ALR 
1327; 147 ALR 1442; 148 ALR 1401; 150 ALR 
1448; 153 ALR 1433; 154 ALR 1459; 155 ALR 
1458; 158 ALR 1463. 

Liability for death or injury on or near 
golf course, 138 ALR 541; 82 ALR2d 1183. 

Damages on account of loss of earnings or 
impairment of earning capacity due to wife's 
personal injury as recoverable by her or by 
her husband, 151 ALR 479. 

Liability for death of, or injury to, one 
seeking to rescue another, 158 ALR 189. 

Liability of adjoining property owner for 
injury to one deviating from highway or 
frequented path, 159 ALR 136. 

Right of one to recover from personal 
injury to himself and for death of another 
killed in the same accident as giving rise a 
single cause of action or to separate causes of 
action, 161 ALR 208. 

Breach of lessor's agreement to repair as 
ground of liability for personal injury to 
tenant or one in privity with latter, 163 ALR 
300; 78 ALR2d 1238. 

Liability for injury to or death of partici- 
pant in game or contest, 7 ALR2d 704. 

Liability of manufacturer or wholesaler for 
injury caused by third person's use of explo- 
sives or other dangerous article sold to re- 
tailer in violation of law, 11 ALR2d 1028. 

Proof of prospective earning capacity of 
student or trainee, or of its loss, in action for 
personal injury or death, 15 ALR2d 418. 

Liability for injury resulting from swinging 
door, 16ALR2d 1161. 

Liability of owner or operator of park or 
other premises on which baseball or other 
game is played, for injuries by ball to person 
on nearby street, sidewalk, or premises, 16 
ALR2d 1458. 



Liability of municipality for injury or dam- 
age from explosion or burning of substance 
stored by third person under municipal per- 
mit, 17 ALR2d 683. 

Recovery by tenant of damages for physi- 
cal injury or mental anguish occasioned by 
wrongful eviction, 17 ALR2d 936. 

Liability of one servicing, repairing, or 
adjusting an oil-burning furnace or other 
oil-burning heating appliance, for personal 
injury, death, or property damage, 18 
ALR2d 1326. 

Liability of seller of firearm, explosive, or 
highly inflammable substance to child, 20 
ALR2d 1 19; 75 ALR3d 825; 95 ALR3d 390; 4 
ALR4th 331. 

Danger of apparent danger of great bodily 
harm or death as condition of self-defense in 
civil action for assault and battery, personal 
injury, or death, 25 ALR2d 1215. 

Liability of landowner for injury to or 
death of child caused by cave-in or landslide, 
28 ALR2d 195. 

Liability of landowner for injury to or 
death of child resulting from piled or 
stacked lumber or other building materials, 
28 ALR2d 218. 

Liability for injury or damage growing out 
of pulling out of parked motor vehicle, 29 
ALR2d 107. 

Violation of zoning ordinance or regula- 
tion as affecting or creating liability for 
injuries or death, 31 ALR2d 1469. 

Liability for injury to hand in vehicle door, 
34ALR2d 1172. 

Shipper's liability to consignee or his em- 
ployee injured while unloading car because 
of improper loading, 35 ALR2d 609. 

Joinder of cause of action for pain and 
suffering of decedent with cause of action 
for wrongful death, 35 ALR2d 1377. 

Municipal liability for injuries from snow 
and ice on sidewalk, 39 ALR2d 782. 

Liability for injury or death of adult from 
electric wires passing through or near trees, 
40 ALR2d 1299. 

Liability of one negligently causing fire for 
personal injuries sustained in attempt to 
control fire or to save life or property, 42 
ALR2d 494. 

Liability for injury to or death of child 
from burns caused by hot ashes, cinders, or 
other hot waste material, 42 ALR2d 930. 

Liability of motor carrier for injury to 
passenger's hand in vehicle door, 42 ALR2d 
1190. 



95 



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Overcrowding motor vehicle or riding in 
unusual position thereon as affecting liabil- 
ity for injury or damage, 44 ALR2d 238. 

Liability of landowner for injury or death 
of adult falling down unhoused well, cistern, 
mine shaft, or the like, 46 ALR2d 1069. 

Liability of carrier to passenger injured by 
hurling of object through window by a third 
person, 46 ALR2d 1098. 

Res ipsa loquitur doctrine with respect to 
firearms accident, 46 ALR2d 1216. 

Right of defendant in action for personal 
injury, property damage, or death, to bring 
in new parties as cross defendants to his 
counterclaim or the like, 46 ALR2d 1253. 

Liability for injury or damage resulting 
from fire started by use of blowtorch, 49 
ALR2d 368. 

Liability for injury or death from electrifi- 
cation of guy wire, 55 ALR2d 129. 

Liability for injury or death from collision 
with guy wire, 55 ALR2d 178. 

Liability for injury or damage from stone 
or other object on surface of highway 
thrown by passing vehicle, 56 ALR2d 1392. 

Prejudicial effect of admission, in per- 
sonal injury action, of evidence as to finan- 
cial or domestic circumstances of plaintiff, 
59ALR2d371. 

Liability of air carrier to passenger injured 
while boarding or alighting, 61 ALR2d 1113. 

Liability for injuries received in fishing 
accidents resulting from use of tackle, 61 
ALR2d 1262. 

Liability of liquor furnisher under civil 
damage or dramshop act for injury or death 
of intoxicated person from wrongful act of a 
third person, 65 ALR2d 923. 

Liability for personal injury to one collid- 
ing with or falling over scale or other ma- 
chine dispensing merchandise or services on 
public sidewalk, 65 ALR2d 965. 

Liability for accident from "jackknifing" 
of trailers or the like, 68 ALR2d 353. 

Liability of electric power company for 
injury or death resulting from contact of 
crane, derrick, or other movable machine 
with electric line, 69 ALR2d 93. 

Liability of owner or occupant of premises 
for injury or death resulting from contact of 
crane, derrick, or other movable machine 
with electric line, 69 ALR2d 160; 14 ALR4th 
913. 

Hospital's liability for injury to patient 
from heat lamp or pad or hot-water bottle, 
72 ALR2d 408. 



Liability of one repairing, installing, or 
servicing gas-burning appliance, for per- 
sonal injury, death, or property damage, 72 
ALR2d 865. 

Liability of operators or sponsors of soap- 
box derby for personal injury, 72 ALR2d 
1137. 

Liability for injury or damage from taxiing 
aircraft, 74 ALR2d 654. 

Municipal liability for injury or death 
from collision with rope or clothesline across 
sidewalk or street, 75 ALR2d 565. 

Liability for injury to one on or near 
merry-go-round, 75 ALR2d 792. 

Air carrier's liability for injury to passen- 
ger from changes in air pressure, 75 ALR2d 
848. 

Liability for personal injury or death 
based on overloading aircraft, 75 ALR2d 
868. 

Liability of taxicab carrier to passenger 
injured while boarding vehicle, 75 ALR2d 
988. 

Liability for injury to one servicing air- 
plane, 76 ALR2d 1070. 

Shipowner's liability to longshoreman for 
injuries due to aspects of unseaworthiness 
brought about by acts of stevedore company 
or latter's servants, 77 ALR2d 829. 

Participation in gambling activities as bar 
to action for personal injury or death, 77 
ALR2d961. 

Liability for injury or damage caused by 
negligent operation of crane, derrick, or the 
like, 81 ALR2d 473. 

Liability for injury or damage caused by 
operation of power machine in snow re- 
moval, 81 ALR2d 519. 

Admissibility, as against objection of re- 
moteness, of evidence as to past earnings, 
upon issue as to amount of damages in an 
action for personal injury or death, 81 
ALR2d 733. 

Liability for injury to person in street by 
glass falling from window, door, or wall, 81 
ALR2d 897. 

Liability for injury or damages resulting 
from operation of vehicle in funeral proces- 
sion or in procession which is claimed to 
have such legal status, 85 ALR2d 692. 

Liability of owner of horse to person in- 
jured or killed when kicked, bitten, knocked 
down, and the like, 85 ALR2d 1161. 

Custom as to loading, unloading, or stow- 
age of cargo as standard of care in action for 



96 



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GENERAL PROVISIONS 



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personal injury or death of seaman or long- 
shoreman, 85 ALR2d 1196. 

Liability for injury or death of child in 
refrigerator, 86 ALR2d 709. 

Liability for injury or damage caused by 
bees, 86ALR2d791. 

Liability of consignee for personal injury 
or death of one other than his employee in 
connection with carrier unloading opera- 
tions, 86 ALR2d 1399. 

Liability of pedestrian to another pedes- 
trian injured as result of collision between 
them on sidewalk, 88 ALR2d 1143. 

Liability of doctor or dentist using force to 
restrain or discipline patient, 89 ALR2d 983. 

Liability for injury from defective condi- 
tion or improper operation of lift bridge or 
drawbridge, 90 ALR2d 105. 

Shipowner's liability for injury caused to 
seaman or longshoreman by cargo or its 
stowage, 90 ALR2d 710. 

Liability of operator of skiing, toboggan- 
ing, or bobsledding facilities for injury to 
patron or participant, 94 ALR2d 1431; 95 
ALR3d 203. 

Products liability: toys and games, 95 
ALR3d 390. 

Liability of gas company for personal in- 
jury or property damage caused by gas es- 
caping from mains in street, 96 ALR2d 1007; 
34ALR5th 1. 

Civil liability of one causing personal in- 
jury for consequences of negligence, mis- 
take, or lack of skill of physician or surgeon, 
100 ALR2d 808. 

Liability for injury to or death of passen- 
ger in connection with a fire drill or 
abandonment-of-ship drill aboard a vessel, 8 
ALR3d 650. 

Validity, enforceability, and effect of provi- 
sion in seamen's employment contract stip- 
ulating the maximum recovery for sched- 
uled personal injuries, 9 ALR3d 417. 

Master's liability to agricultural worker 
injured other than by farm machinery, 9 
ALR3d 1061. 

Liability for injury to or death of umpire, 
referee, or judge of game or contest, 10 
ALR3d 446. 

Propriety and prejudicial effect of refer- 
ence by plaintiff's counsel, in jury trial of 
personal injuries or death action, to amount 
of damages claimed or expected by his cli- 
ent, 14ALR3d 541. 

Water distributor's liability for injuries due 



to condition of service lines, meters, and the 
like, which serve individual consumer, 20 
ALR3d 1363. 

Liability under Jones Act or seaworthiness 
doctrine for injuries caused by assault, 22 
ALR3d 624. 

Skier's liability for injuries to or death of 
another person, 24 ALR3d 1447. 

Contributory negligence or assumption of 
risk of one injured by firearm or air gun 
discharged by another, 25 ALR3d 518. 

Liability of owner or operator of power 
lawnmower for injuries resulting to third 
person from its operation, 25 ALR3d 1314. 

Spouse's or parent's right to recover puni- 
tive damages in connection with recovery of 
damages for medical expenses or loss of 
services or consortium arising from personal 
injury to other spouse or to child, 25 ALR3d 
1416. 

Hunter's civil liability for unintentionally 
shooting another person, 26 ALR3d 561. 

Municipal liability for personal injury or 
death under mob violence or antilynching 
statutes, 26ALR3d 1142. 

Liability for injury or damage caused by 
rocket testing or firing, 29 ALR3d 556. 

Liability, because of improper loading, of 
railroad consignee or his employee injured 
while unloading car, 29 ALR3d 1039. 

Railroad's liability for injury to or death of 
child on moving train other than as paying 
or proper passenger, 35 ALR3d 9. 

Liability in connection with fire or explo- 
sion of explosives while being stored or 
transported, 35 ALR3d 1177. 

Tort liability of public schools and institu- 
tions of higher learning for accidents occur- 
ring during use of premises and equipment 
for other than school purposes, 37 ALR3d 
712. 

Tort liability of public schools and institu- 
tions of higher learning for injuries due to 
condition of grounds, walks, and play 
grounds, 37 ALR3d 738. 

Liability for injury caused by spraying or 
dusting of crops, 37 ALR3d 833. 

Liability of landlord for injury or death 
occasioned by swimming pool maintained 
for tenants, 39 ALR3d 824. 

Liability for injury to guest in airplane, 40 
ALR3d 1117. 

Liability for prenatal injuries, 40 ALR3d 
1222. 

Anti-hitchhiking laws: Their construction 



97 



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TORTS 



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and effect in action for injury to hitchhiker, 
46 ALR3d 964. 

Liability of vendor or grantor of real estate 
for personal injury to purchaser or third 
person due to defective condition of pre- 
mises, 48 ALR3d 1027. 

Liability for injury or death of pallbearer, 
48ALR3d 1280. 

Liability of hospital for injury caused 
through assault by a patient, 48 ALR3d 1288. 

Liability for injury or death in shooting 
contest or target practice, 49 ALR3d 762. 

Master and servant: employer's liability for 
injury caused by food or drink purchased by 
employee in plant facilities, 50 ALR3d 505. 

Liability of owner or operator of store or 
similar place of business for injury to child 
climbing or playing on furniture, fixtures, 
displays, or the like, 50 ALR3d 1227. 

Liability for injury to or death of passen- 
ger from accident due to physical condition 
of carrier's employee, 53 ALR3d 669. 

Liability for injuries or death resulting 
from physical therapy, 53 ALR3d 1250. 

Absolute liability for blasting operations as 
extending to injury or damage not directly 
caused by debris or concussion from explo- 
sion, 56ALR3d 1017. 

Liability of installer or maintenance com- 
pany for injury caused by failure of auto- 
matic elevator to level at floor, 63 ALR3d 
996. 

Liability for injury caused by fall of person 
into shaft, or by abrupt drop, sudden move- 
ment, or stopping between floors, of auto- 
matic passenger elevator, 64 ALR3d 950. 

Liability of installer or maintenance com- 
pany for injury caused by door of automatic 
passenger elevator, 64 ALR3d 1005. 

Liability of owner or operator for injury 
caused by failure of automatic elevator to 
level at floor, 64 ALR3d 1020. 

Liability for injury or death of minor or 
other incompetent inflicted upon himself by 
gun made available by defendant, 75 ALR3d 
825. 

Liability of one causing physical injuries as 
a result of which injured party attempts or 
commits suicide, 77 ALR3d 311. 

Civil liability of prison or jail authorities 
for self-inflicted injury or death of prisoner, 
79 ALR3d 1210. 

Liability of power company for injury or 
death resulting from contact of radio or 
television antenna with electrical line, 82 
ALR3d 113. 



Peace officer's civil liability for death or 
personal injuries caused by intentional force 
in arresting misdemeanant, 83 ALR3d 238. 

Liability of swimming facility operator for 
injury or death allegedly resulting from con- 
dition of deck, bathhouse, or other area in 
vicinity of water, 86 ALR3d 388. 

Liability of swimming facility operator for 
injury to or death of swimmer allegedly 
resulting from hazardous condition in water, 
86ALR3d 1021. 

Liability of youth camp, its agents or em- 
ployees, or of scouting leader or organiza- 
tion, for injury to child participant in pro- 
gram, 88 ALR3d 1236. 

Liability of one negligently causing fire for 
injuries sustained by person other than 
firefighter in attempt to control fire or to 
save life or property, 91 ALR3d 1202. 

Liability for injuries in connection with 
revolving door on nonresidential premises, 
93ALR3d 132. 

Liability of owner or operator of boat 
livery for injury to patron, 94 ALR3d 876. 

Liability of private owner or occupant of 
land abutting highway for injuries or dam- 
ages resulting from tree or limb falling onto 
highway, 94 ALR3d 1160. 

Liability for injury or death form ski lift, 
ski tow, or similar device, 95 ALR3d 203. 

Liability for civilian skydiver's or parachut- 
ist's injury or death, 95 ALR3d 1280. 

Liability, in motor vehicle-related cases, of 
governmental entity for injury or death re- 
sulting from ice or snow on surface of high- 
way or street, 97 ALR3d 11. 

Architect's liability for personal injury or 
death allegedly caused by improper or de- 
fective plans or design, 97 ALR3d 455. 

Liability of taxicab carrier to passenger 
injured while alighting from taxi, 98 ALR3d 
822. 

Liability of persons furnishing intoxicat- 
ing liquor for injury to or death of con- 
sumer, outside coverage of civil damage acts, 
98 ALR3d 1230. 

Liability of telephone company for injury 
by noise or electric charge transmitted over 
line, 99 ALR3d 628. 

Liability of governmental unit or private 
owner or occupant of land abutting highway 
for injuries or damage sustained when mo- 
torist strikes tree or stump on abutting land, 
100 ALR3d 510. 

When statute of limitations begins to run 



98 



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as to cause of action for development of 
latent industrial or occupational disease, 1 
ALR4th 117. 

Liability for injury on, or in connection 
with, escalator, 1 ALR4th 144. 

Motor carrier's liability for personal injury 
or death of passenger caused by debris, litter, 
or other foreign object on floor or seat of 
vehicle, 1 ALR4th 1249. 

Highway construction contractor's liability 
for injuries to third persons by materials or 
debris on highway during course of con- 
struction or repair, 3 ALR4th 770. 

Liability of one who sells gun to child for 
injury to third party, 4 ALR4th 331. 

Liability of owner of dog for dog's biting 
veterinarian or veterinarian's employee, 4 
ALR4th 349. 

Liability of governmental unit or its offic- 
ers for injury to innocent occupant of mov- 
ing vehicle, or for damage to such vehicle, as 
result of police chase, 4 ALR4th 865. 

Actual notice or knowledge by govern- 
mental body or officer of injury or incident 
resulting in injury as constituting required 
claim or notice of claim for injury — mod- 
ern status, 7 ALR4th 1063. 

Excessiveness or adequacy of damages 
awarded for injuries to head or brain, or for 
mental or nervous disorders, 14 ALR4th 328. 

Excessiveness or adequacy of damages 
awarded for injuries to, or conditions in- 
duced in, circulatory, digestive, and glandu- 
lar systems, 14 ALR4th 539. 

Excessiveness or adequacy of damages 
awarded for injuries to trunk or torso, or 
internal injuries, 48 ALR5th 129. 

Excessiveness or adequacy of damages 
awarded for injuries causing particular dis- 
eases or conditions, 16 ALR4th 736. 

Excessiveness or adequacy of damages 
awarded for injuries to, or conditions in- 
duced in, sensory or speech organs and 
systems, 16 ALR4th 1127. 

Applicability of doctrine of strict liability 
in tort to injury resulting from X-ray radia- 
tion, 16 ALR4th 1300. 

Liability of theater owner or operator for 
injury to or death of patron resulting from 
lighting conditions on premises, 19 ALR4th 
1110. 

Liability of hospital, physician, or other 
individual medical practitioner for injury or 
death resulting from blood transfusion, 20 
ALR4th 136. 



Liability for personal injury or death alleg- 
edly resulting from television or radio broad- 
cast, 20 ALR4th 327. 

Contributory negligence and assumption 
of risk in action against owner of store, 
office, or similar place of business by invitee 
falling on tracked-in water or snow, 20 
ALR4th 517. 

Modern status of rules as to admissibility 
of evidence of prior accidents or injuries at 
same place, 21 ALR4th 472. 

Liability of blood supplier or donor for 
injury or death resulting from blood trans- 
fusion, 24 ALR4th 508. 

Width or design of lateral space between 
passenger loading platform and car en- 
trance as affecting carrier's liability to pas- 
senger for injuries incurred from falling into 
space, 28 ALR4th 748. 

Exterminator's tort liability for personal 
injury or death directly resulting from oper- 
ations, 29 ALR4th 987. 

Liability for injury or death resulting 
when object is manually brought into con- 
tact with, or close proximity to, electric line, 
33 ALR4th 809. 

Liability of land carrier to passenger who 
becomes victim of third party's assault on or 
about carrier's vehicle or premises, 34 
ALR4th 1054. 

Excessiveness or inadequacy of punitive 
damages awarded in personal injury or 
death cases, 35 ALR4th 441. 

Tort action for personal injury or property 
damage by partner against another partner 
or the partnership, 39 ALR4th 139. 

Liability of attorney for suicide of client 
based on attorney's professional act or omis- 
sion, 41 ALR4th 351. 

Liability of employment agency for per- 
sonal injury or property damage suffered by 
employer from acts of referred employee, or 
by employee from acts of referred employer, 
41 ALR4th 531. 

Liability of land carrier to passenger who 
becomes victim of another passenger's as- 
sault, 43 ALR4th 189. 

Liability for injury to martial arts partici- 
pant, 47 ALR4th 403. 

Liability for personal injury or death 
caused by trespassing or intruding livestock, 
49 ALR4th 710. 

Liability to one struck by golf ball, 53 
ALR4th 282. 

Tortious maintenance or removal of life 
supports, 58 ALR4th 222. 



99 



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Tort liability of private nursery school or 
daycare center, or employee thereof, for 
injury to child while attending facility, 58 
ALR4th 240. 

Products liability: toxic shock syndrome, 
59 ALR4th 50. 

Condominium association's liability to 
unit owner for injuries caused by third per- 
son's criminal conduct, 59 ALR4th 489. 

Primary liability of private chain 
franchisor for injury or death caused by 
franchise premises or equipment, 59 
ALR4th 1142. 

Liability for injury to customer or other 
invitee of retail store by falling of displayed, 
stored, or piled objects, 61 ALR4th 27. 

Liability to one struck by golf club, 63 
ALR4th 221. 

Liability for injury incurred in operation 
of power golf cart, 66 ALR4th 622. 

Tort liability of college, university, frater- 
nity, or sorority for injury or death of mem- 
ber or prospective member by hazing or 
initiation activity, 68 ALR4th 228. 

Liability for injuries caused by cat, 68 
ALR4th 823. 

Prejudicial effect of bringing to jury's at- 
tention fact that plaintiff in personal injury 
or death action is entitled to workers' com- 
pensation benefits, 69 ALR4th 131. 

Tort liability for window washer's injury or 
death, 69 ALR4th 207. 

Liability for personal injury or property 
damage caused by unauthorized use of auto- 
mobile which had been parked with keys 
removed from ignition, 70 ALR4th 276. 

Right of child to action against mother for 
infliction of prenatal injuries, 78 ALR4th 
1082. 

Liability of proprietor of private gymna- 
sium, reducing salon, or similar health club 
for injury to patron, 79 ALR4th 127. 

Liability of cosmetology school for injury 
to patron, 81 ALR4th 444. 

Permissibility of in-court demonstration to 
show effect of injury in action for bodily 
injury, 82 ALR4th 980. 

Liability for injury or damage caused by 
snowplowing or snow removal operations 
and equipment, 83 ALR4th 5. 

Application of "discovery rule" to post- 
pone running of limitations against action 
for damages from assault, 88 ALR4th 1063. 

Refusal of medical treatment on religious 
grounds as affecting right to recover for 
personal injury or death, 3 ALR5th 721. 



Liability for injury or death from collision 
with guy wire, 8 ALR5th 177. 

Prospective juror's connection with defen- 
dant's insurance company as ground for 
challenge for cause, 9 ALR5th 102. 

Excessiveness or inadequacy of punitive 
damages awarded in personal injury or 
death cases, 12 ALR5th 195. 

Products liability: lighters and lighter 
fluid, 14 ALR5th 47. 

Air carrier's liability for injury from con- 
dition of airport premises, 14 ALR5th 662. 

Liability of adult assailant's family to third 
party for physical assault, 25 ALR5th 1. 

Liability of owner or operator of shopping 
center, or business housed therein, for in- 
jury to patron on premises from criminal 
attack by third party, 31 ALR5th 550. 

Res ipsa loquitor in gas leak cases, 34 
ALR5th 1. 

Liability for injuries to, or death of water 
skiers, 34 ALR5th 77. 

Employer's liability to employee or agent 
for injury or death resulting from assault or 
criminal attack by third person, 40 ALR5th 
1. 

Propriety of, and liability related to, issu- 
ance or enforcement of do not resuscitate 
orders, 46 ALR5th 793. 

Excessiveness of adequacy of damages 
awarded for injuries to trunk or torso, or 
internal injuries, 48 ALR5th 129. 

Excessiveness or adequacy of damages 
awarded for injuries to head or brain, 50 
ALR5th 1. 

Excessiveness or adequacy of damages 
awarded for injuries to nerves or nervous 
system, 51 ALR5th 467. 

Liability of participant in team athletic 
competition for injury to or death of an- 
other participant, 55 ALR5th 529. 

Prosecution of mother for prenatal sub- 
stance abuse based on endangerment of or 
delivery of controlled substance to child, 70 
ALR5th 461. 

Liability of owner, operator, or other par- 
ties, for personal injuries allegedly resulting 
from snow or ice on premises of parking lot, 
74 ALR5th 49. 

Liability of vendor for food or beverage 
spilled on customer, 64 ALR5th 205. 

Liability for donee's contraction of Ac- 
quired Immune Deficiency Syndrome 
(AIDS) from blood transfusion, 64 ALR5th 
333. 



100 



51-1-14 



GENERAL PROVISIONS 



51-1-14 



Admissibility, after enactment of Rule 41 1, 
Federal Rules of Evidence, of evidence of 
liability insurance in negligence actions, 40 
ALRFed. 541. 

Limitation of liability of air carrier for 



personal injury or death, 91 ALR Fed. 547. 
First amendment guaranty of freedom of 
speech or press as defense to liability stem- 
ming from speech allegedly causing bodily 
injury, 94 ALR Fed. 26. 



51-1-14. Violent injury or attempt to commit injury, 

Any violent injury or illegal attempt to commit a physical injury upon a 
person is a tort for which damages may be recovered. (Orig. Code 1863, 
§ 2911; Code 1868, § 2918; Code 1873, § 2969; Code 1882, § 2969; Civil 
Code 1895, § 3827; Civil Code 1910, § 4423; Code 1933, § 105-602.) 



Cross references. — Assault and battery 

generally, Art. 2, Ch. 5, T. 16. Rape, § 16-6-1. 

Law reviews. — For comment on Mims v. 



Boland, 110 Ga. App. 477, 138 S.E.2d 902 
(1964), see 2 Ga. St. B.J. 133 (1965). 



JUDICIAL DECISIONS 



Cause of action for personal injury. — 

Actions ex delicto both by the common law 
and the law of Georgia unquestionably in- 
clude actions for injuries to the person. 
Goebel v. Hodges, 83 Ga. App. 574, 64 S.E.2d 
207 (1951). 

Unlawful touching constitutes physical in- 
jury. — Any unlawful touching of a person's 
body, even though no actual physical hurt 
may ensue therefrom, since it violates a 
personal right, constitutes a physical injury 
to that person. Interstate Life 8c Accident 
Co. v. Brewer, 56 Ga. App. 599, 193 S.E. 458 
(1937). 

Unlawful touching need not be direct, but 
may be indirect, as by the precipitation upon 
the body of a person of any material sub- 
stance. Interstate Life & Accident Co. v. 
Brewer, 56 Ga. App. 599, 193 S.E. 458 
(1937). 

Mere striking of silver coin thrown by 
defendant against plaintiff's body amounted 
in law to physical injury. Interstate Life & 
Accident Co. v. Brewer, 56 Ga. App. 599, 193 
S.E. 458 (1937). 

Summary judgment inappropriate. — In a 
case where a merchant's employee detained 
three suspected shoplifters, and the detain- 
ees brought claims of assault and battery, 
summary judgment in favor of the merchant 
was inappropriate where the plaintiffs testi- 
fied that the employee detained them an 
unreasonable amount of time and was phys- 
ically and verbally abusive. Brown v. Super 



Disc. Mkts., Inc., 223 Ga. App. 174, 477 
S.E.2d 839 (1996). 

Summary judgment was improperly 
granted to the defendant where the plaintiff 
basketball referee testified that the defen- 
dant coach intentionally slammed his body 
into the plaintiff and bumped him back- 
wards and that his conduct was highly offen- 
sive. Darnell v. Houston County Bd. of 
Educ, 234 Ga. App. 488, 506 S.E.2d 385 
(1998). 

Jury instructions. — The court having 
properly instructed the jury as to the relative 
rights of the parties under the pleadings and 
the evidence, it was not error to fail to give in 
charge the definition of a tort as contained 
in this section. Christy Bros. Circus v. 
Turnage, 38 Ga. App. 581, 144 S.E. 680, 
overruled on other grounds, Ob-Gyn Assocs. 
v. Littleton, 259 Ga. 663, 386 S.E.2d 146 
(1989). 

Remedies for fourth amendment violation 
by police officers. — See Gilmere v. City of 
Atlanta, 737 F.2J 894 (11th Cir. 1984), aff'd 
in part and rev'd and vacated in part en 
banc, 774 F.2d 1495 (11th Cir. 1985), cert 
denied, 476 U.S. 1115, 106 S. Ct. 1970, 90 L. 
Ed. 2d 654 (1986). 

Cited in Dodd v. Slater, 101 Ga. App. 362, 
114 S.E.2d 170 (1960); Roberts v. Harrell, 
230 Ga. 454, 197 S.E.2d 704 (1973); Bowling 
v. Janmar, Inc., 142 Ga. App. 53, 234 S.E.2d 
849 (1977); Capitol T.V. Serv., Inc. v. Der- 
rick, 163 Ga. App. 65, 293 S.E.2d 724 (1982); 



101 



51-1-15 



TORTS 



51-1-15 



Luckie v. Piggly-Wiggly S., Inc., 173 Ga. App. 
177, 325 S.E.2d 844 (1984); Gardner v. 
Rogers, 224 Ga. App. 165, 480 S.E.2d 217 



(1996); Sam's Wholesale Club v. Riley, 241 
Ga. App. 693, 527 S.E.2d 293 (1999). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 74 Am. Jur. 2d, Torts, 
§§ 17, 18, 20, 21, 26-29. 

C.J.S. — 6A C.J.S., Assault and Battery, § 4 
et seq. 

ALR. — Civil action for assault upon fe- 
male person, 6 ALR 985. 

Civil liability growing out of mutual com- 
bat, 30 ALR 199; 47 ALR 1092. 

Recovery for physical consequences of 
fright resulting in physical injury, 76 ALR 
681; 98 ALR 402. 

Punitive or exemplary damages for as- 
sault, 123 ALR 1115. 

Proof to establish or negative self-defense 
in civil action for death from intentional act, 
17ALR2d597. 

Civil liability of insane or other mentally 
disordered person for assault or battery, 77 
ALR2d 625. 

Liability under Jones Act or seaworthiness 
doctrine for injuries caused by assault, 22 
ALR3d 624. 

Admissibility of evidence of character or 



reputation of party in civil action for assault 
on issues other than impeachment, 91 
ALR3d 718. 

Assault: criminal liability as barring or 
mitigating recovery of punitive damages, 98 
ALR3d 870. 

Admissibility of evidence of character or 
reputation of party in civil action for sexual 
assault on issues other than impeachment, 
100 ALR3d 569. 

Employee's act or threat of physical vio- 
lence as bar to unemployment compensa- 
tion, 20 ALR4th 637. 

Liability for injury to martial arts partici- 
pant, 47 ALR4th 403. 

Workers' compensation law as precluding 
employee's suit against employer for third 
person's criminal attack, 49 ALR4th 926. 

Parking facility proprietor's liability for 
criminal attack on patron, 49 ALR4th 1257. 

Permissibility of in-court demonstration to 
show effect of injury in action for bodily 
injury, 82 ALR4th 980. 



51-1-15. Right of action for abduction or harboring of wife. 

A husband shall have a right of action against another for abducting or 
harboring his wife. Furnishing shelter and food to a wife driven from her 
home by cruel treatment is an act of humanity and shall give no right of 
action to the husband. (Orig. Code 1863, § 2949; Code 1868, § 2956; Code 
1873, § 3007; Code 1882, § 3007; Civil Code 1895, § 3868; Civil Code 1910, 
§ 4464; Code 1933, § 105-1202.) 

JUDICIAL DECISIONS 



Action under this section based on loss of 
consortium. — The gist of an action for 
harboring the plaintiff's wife is the loss of 
"consortium," which is a property right 
growing out of the marriage relationship, 
and includes the exclusive right to the ser- 
vices of the spouse and to the society, com- 
panionship, and conjugal affection of each 
other. Hobbs v. Holliman, 74 Ga. App. 735, 
41 S.E.2d 332 (1947). 

Action for loss of consortium must be 
brought within a two-year period from the 



date of injury. Pinkerton Nat'l Detective 
Agency, Inc. v. Stevens, 108 Ga. App. 159, 
132S.E.2d 119 (1963). 

Cause of action accrues when consortium 
lost. — The cause of action accrues when or 
immediately after the society, affection, assis- 
tance, and conjugal fellowship, usually ex- 
pressed by the term "consortium," is lost 
without reference to words or acts which 
allegedly caused the loss. Hobbs v. Holliman, 
74 Ga. App. 735, 41 S.E.2d 332 (1947). 

Pleadings. — The facts of harboring the 



102 



514-16 



GENERAL PROVISIONS 



51-1-16 



wife being pled as inducement or explana- 
tory of the gist of the cause of action for loss 
of consortium, such acts are not required to 
be set forth with the same certainty as that 
required in setting forth the gist or the 
essential elements of the cause of action. 
Hobbs v. Holliman, 74 Ga. App. 735, 41 
S.E.2d332 (1947). 



Cited in Edwards v. Monroe, 54 Ga. App. 
791, 189 S.E. 419 (1936); Hosford v. 
Hosford, 58 Ga. App. 188, 198 S.E. 289 
(1938); Wright v. Lester, 105 Ga. App. 107, 
123S.E.2d672 (1961). 



RESEARCH REFERENCES 

Am. Jur. 2d. — 41 Am. Jur. 2d, Husband C.J.S. — 41 CJ.S., Husband and Wife, 

and Wife, §§ 2,3. §§ 116, 118. 

51-1-16. Right of action for seduction of daughter; exemplary damages. 

The seduction of a daughter, unmarried and living with her parent, 
whether followed by pregnancy or not, shall give a right of action to the 
father or to the mother if the father is dead, or absent permanently, or 
refuses to bring an action. No loss of services need be alleged or proved. 
The seduction is the gist of the action, and in well-defined cases exemplary 
damages shall be granted. (Orig. Code 1863, § 2951; Code 1868, § 2958; 
Code 1873, § 3009; Code 1882, § 3009; Civil Code 1895, § 3870; Civil Code 
1910, § 4466; Code 1933, § 105-1204.) 



Cross references. — Sexual offenses gen- 
erally, Ch. 6, T. 16. 

Law reviews. — For note, "Sharpening 
the Prongs of the Establishment Clause: 



Applying Stricter Scrutiny to Majority Reli- 
gions," see 23 Ga. L. Rev. 1085 (1989). 



JUDICIAL DECISIONS 



Constitutionality. — This section is a 
gender-based classification that violates the 
equal protection clause of the Georgia Con- 
stitution because only men may be civilly 
liable for seduction under the statute. 
Franklin v. Hill, 264 Ga. 302, 444 S.E.2d 778 
(1994). 

This section is not of common-law origin, 
but, on the contrary, supplants and is a 
substitute for the common law, which re- 
quired proof of loss of service. Moslev v. 
Lynn, 172 Ga. 193, 157 S.E. 450 (1931).' 

Seduction is the act of a man inducing a 
woman to commit unlawful intercourse with 
him; and it is not essential, in order to 
maintain an action, that there should be a 
promise of marriage. Mosley v. Lynn, 172 Ga. 
193, 157 S.E. 450 (1931). 

No requirement of "false or fraudulent" 
means. — The tort of seduction as codified 



in this section does not include a require- 
ment that the seduction of the daughter be 
accomplished through "false or fraudulent" 
means. Franklin v. Hill, 203 Ga. App. 724, 
417 S.E.2d 721, cert, denied, 203 Ga. App. 
906, 417S.E.2d721 (1992). 

"Seduction" further construed. — Prop- 
erly construed, the word "seduction," as 
used in this section has reference to any and 
all cases in which a child is led astray and her 
morals destroyed, uprooted, and extirpated, 
her social standing damaged, and she is 
thereby rendered an unfit associate for other 
children in the family, and a debased mem- 
ber of society; the word may include adultery 
or fornication; and there may be recovery by 
a parent of damages for such conduct as has 
debauched his daughter, though the seducer 
be known by the infant to be a married man, 
if by the employment of any means the 



103 



51-1-16 



TORTS 



51-1-16 



seducer leads the child into sexual immoral- 
ity and vice. Mosley v. Lynn, 172 Ga. 193, 157 
S.E. 450 (1931). 

Only parent has requisite standing. — The 
statute, on its face, provides that only a 
parent of a seduced daughter has the requi- 
site standing to bring an action for seduc- 
tion, therefore the alleged victim of seduc- 
tion, cannot bring a valid cause of action 
under this section in her own name through 
mother "as next friend". Franklin v. Hill, 
203 Ga. App. 724, 417 S.E.2d 721, cert, 
denied, 203 Ga. App. 906, 417 S.E.2d 721 
(1992); Brayman v. Deloach, 211 Ga. App. 
489, 439 S.E.2d 709 (1993). 

Actionable injury is against parent. — As a 
civil injury, the term "seduction" denomi- 
nates an injury to the parent which arises out 
of any unlawful sexual intercourse in which 
the child is induced to participate by the acts 
or wiles of the seducer. Mosley v. Lynn, 172 
Ga. 193, 157 S.E. 450 (1931). 

Either parent may bring action. — This 
section effected another change from com- 
mon law, in that at common law the mother, 
not being entitled to the services of the 
child, was not entided to recover for loss or 
deprivation of such services. Mosley v. Lynn, 
172 Ga. 193, 157 S.E. 450 (1931). 

Joint tort-feasors. — One who aids and 
abets or assists another in the debauchery of 
a female child, and especially if he stand 
guard during such continuous seduction, to 
prevent detection of the participants in the 
act of fornication and adultery, is a joint 
tort-feasor, and as such is liable with the 
principal in the act. Mosley v. Lynn, 172 Ga. 
193, 157 S.E. 450 (1931). 

Action arises on completion of seduction. 
— A father's cause of action under this 
section for the seduction of his daughter 
arises when the act of seduction is complete, 
and not when he discovers that his daughter 
has been seduced. Davis v. Boyett, 120 Ga. 



649, 48 S.E. 185, 102 Am. St. R. 118, 66 
L.R.A. 258, 1 Ann. Cas. 386 (1904). 

Not necessary to plead particular facts 
and circumstances. — In order to charge 
seduction, it is not necessary that the man- 
ner of accomplishing the act or the circum- 
stances attending it should be set out. Mosley 
v. Lynn, 172 Ga. 193, 157 S.E. 450 (1931). 

Not necessary to allege victim's virtue. — 
In an action brought for the recovery of 
damages under this section, it is not neces- 
sary to allege or prove that a daughter 
alleged to have been seduced was virtuous. 
Mosley v. Lynn, 172 Ga. 193, 157 S.E. 450 
(1931). 

The elements of the tort of seduction do 
not include a requirement that the seduced 
female be "virtuous," only that the seduced 
daughter be unmarried and living with her 
parent. Furthermore, the statute makes it 
clear that "the seduction is the gist of the 
action," thus placing the emphasis on the 
conduct of the tortfeasor, rather than on the 
behavior of the alleged victim. Franklin v. 
Hill, 203 Ga. App. 724, 417 S.E.2d 721, cert, 
denied, 203 Ga. App. 906, 417 S.E.2d 721 
(1992). 

The fact that in her deposition alleged 
victim admitted that she had sexual relations 
with her boyfriend prior to the alleged acts 
of sexual intercourse with the seducer would 
not preclude her mother from bringing an 
action under this section. Franklin v. Hill, 
203 Ga. App. 724, 417 S.E.2d 721, cert, 
denied, 203 Ga. App. 906, 417 S.E.2d 721 
(1992). 

It is not important whether the word "de- 
bauching" or "seduction" is used in the 
pleadings. Mosley v. Lynn, 172 Ga. 193, 157 
S.E. 450 (1931). 

Cited in Edwards v. Monroe, 54 Ga. App. 
791, 189 S.E. 419 (1936); Hosford v. 
Hosford, 58 Ga. App. 188, 198 S.E. 289 
(1938); Wages v. Amisub of Ga., 235 Ga. 
App. 156, 508 S.E.2d 783 (1998). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 70 Am. Jur. 2d, Seduction, 
§ 78 et seq. 

C.J.S. — 86 C.J.S., Torts, §§ 88, 89. 

ALR. — Exhibition of child in criminal 
prosecution, or civil action, for seduction, 1 
ALR 622. 

When statute of limitations commences to 



run against civil action for seduction, 3 ALR 
155. 

Promise of marriage as condition of civil 
action for seduction, 21 ALR 303. 

Presumption and burden of proof as to 
chastity of prosecutrix in a prosecution for 
seduction, 64 ALR 265. 



104 



51-1-17 



GENERAL PROVISIONS 



51-1-17 



Right of seduced female to maintain ac- 
tion for seduction, 121 ALR 1487. 

Excessiveness or inadequacy of damages 
for alienation of affections, criminal conver- 
sation, or seduction, 36 ALR2d 548. 



Admissibility of evidence of character or 
reputation of party in civil action for sexual 
assault on issues other than impeachment, 
100 ALR3d 569. 



51-1-17. Rights of action for adultery, alienation of affections, and criminal 
conversation abolished. 

Adultery, alienation of affections, or criminal conversation with a wife or 
husband shall not give a right of action to the person's spouse. Rights of 
action for adultery, alienation of affections, or criminal conversation are 
abolished. (Orig. Code 1863, § 2950; Code 1868, § 2957; Code 1873, 
§ 3008; Code 1882, § 3008; Civil Code 1895, § 3869; Civil Code 1910, 
§ 4465; Code 1933, § 105-1203; Ga. L. 1979, p. 466, § 46.) 



Cross references. — Criminal penalty for 

adultery, § 16-6-19. Divorce, § 19-5-1 et seq. 

Law reviews. — For article surveying leg- 



islative and judicial developments in Geor- 
gia's divorce, alimony and child custody laws 
for 1978-79, see 31 Mercer L. Rev. 75 (1979). 



JUDICIAL DECISIONS 



Retrospective repeal of former section 
unconstitutional. - — The portion of the Fam- 
ily and Domestic Relations Law which made 
the repeal of the cause of action for alien- 
ation of affections retrospective as to pend- 
ing actions is unconstitutional. Enger v. 
Erwin, 245 Ga. 753, 267 S.E.2d 25 (1980). 

Former Code 1933, § 105-1203 which pro- 
vided rights of action for adultery, alienation 
of affections, and criminal conversation, was 
cited or construed in Cook v. Wood, 30 Ga. 
891 (1860); Wood v. State, 62 Ga. 406 
(1879); Sikes v. Tippins, 85 Ga. 231, 11 S.E. 
662 (1890); Sellers v. Page, 127 Ga. 633, 56 
S.E. 1011 (1907); Drawdy v. Hesters, 130 Ga. 
161, 60 S.E. 451 (1908); Wilson v. Brock, 134 
Ga. 782, 68 S.E. 497 (1910); Miller v. State, 9 
Ga. App. 827, 72 S.E. 279 (1911); Davis v. 
Cochran, 42 Ga. App. 215, 155 S.E. 379 
(1930); Barney v. Barney, 43 Ga. App. 545, 
159 S.E. 595 (1931); Sessions v. Parker, 45 



Ga. App. 101, 163 S.E. 297 (1932); Roberts v. 
Turner, 49 Ga. App. 516, 176 S.E. 91 (1934); 
Edwards v. Monroe, 54 Ga. App. 791, 189 
S.E. 419 (1936); Hosford v. Hosford, 58 Ga. 
App. 188, 198 S.E. 289 (1938); Sanders v. 
Chandler, 71 Ga. App. 337, 30 S.E.2d 813 
(1944); Kidd v. Holtzendorf, 88 Ga. App. 
360, 76 S.E.2d 656 (1953); Posner v. Koplin, 
94 Ga. App. 306, 94 S.E. 2d 434 (1956); 
Wright v. Lester, 105 Ga. App. 107, 123 
S.E.2d 672 (1961); Emerson v. Fleming, 127 
Ga. App. 296, 193 S.E.2d 249 (1972). 

Interference with marital contract or rela- 
tions. — This section, by implication, bars 
actions based on alleged intentional interfer- 
ence with marital contract and marital rela- 
tions. Arnac v. Wright, 163 Ga. App. 33, 292 
S.E.2d440 (1982). 

Cited in Brown v. Hauser, 249 Ga. 513, 292 
S.E.2d 1 (1982); Hyman v. Moldovan, 166 
Ga. App. 891, 305 S.E.2d 648 (1983). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 41 Am. Jur. 2d, Husband 
and Wife, § 269 et seq. 



CJ.S. — 41 C.J.S., Husband and Wife, 
§ 247 et seq. 



105 



51-1-18 



TORTS 



51-1-18 



51-1-18. Furnishing alcoholic beverages to minor children; gambling with 
minor children. 

(a) The custodial parent or parents shall have a right of action against 
any person who shall sell or furnish alcoholic beverages to that parent's 
underage child for the child's use without the permission of the child's 
parent. 

(b) A parent shall have a right of action against any person who shall play 
and bet at any game of chance with his minor child for money or any other 
thing of value without the parent's permission. (Orig. Code 1863, §§ 2952, 
2953; Code 1868, §§ 2959, 2960; Code 1873, §§ 3010, 3011; Code 1882, 
§§ 3010, 3011; Civil Code 1895, §§ 3871, 3872; Civil Code 1910, §§ 4467, 
4468; Code 1933, §§ 105-1205, 105-1206; Ga. L. 1988, p. 365, § I.) 



Cross references. — See U.S. Const., 
Amend. 21. Prohibition of sale of alcoholic 
beverages by or to underage persons gener- 
ally, § 3-3-23 et seq. Sale of alcoholic bever- 
ages to minors generally, § 3-3-24. Gambling 
and related offenses, § 16-12-20 et seq. 

Editor's notes. — Section 2 of Ga. L. 1988, 
p. 365, not codified by the General Assembly, 
provided that nothing in that Act shall be 
construed to create any new or additional 
cause of action. 



Law reviews. — For note discussing orga- 
nized crime in Georgia with respect to the 
application of state gambling laws, and sug- 
gesting proposals for combatting organized 
crime, see 7 Ga. St. B.J. 124 (1970). For note 
discussing tavern keeper liability in Georgia 
for injury caused by a person to whom an 
intoxicant was sold, see 9 Ga. L. Rev. 239 
(1974). 



JUDICIAL DECISIONS 



Constitutionality of subsection (a) prior to 
1988 amendment. — Subsection (a) of this 
section as it existed prior to the 1988 amend- 
ment created a gender classification which 
did not rest upon "some ground of differ- 
ence having a fair and substantial relation to 
the object of the legislation," and therefore 
violated equal protection of the laws. 
Stepperson, Inc. v. Long, 256 Ga. 838, 353 
S.E.2d461 (1987). 

Strict liability for injury resulting from 
liquor sales is constitutional on the basis that 
the state enjoys a particularly broad police 
power as a result of the U.S. Const, Amend. 
21, repealing prohibition. Reeves v. Bridges, 
248 Ga. 600, 284 S.E.2d 416 (1981). 

Legislature did not intend to impose strict 
liability in enacting this section. Reeves v. 
Bridges, 248 Ga. 600, 284 S.E.2d 416 (1981). 

Cause of action. — A parent is provided a 
right of action against any party who fur- 
nishes spiritous liquors to his child without 



his permission. Dodd v. Slater, 101 Ga. App. 
362, 114S.E.2d 170 (1960). 

Cause of action under subsection (a) 
vested in parent. — Subsection (b) was 
amended to place the cause of action in "a 
parent" when the legislature enacted the 
Code of 1981, effective November 1, 1982, 
and the failure to amend subsection (a) in a 
similar manner was a mere oversight. Thus, 
although subsection (a) as it existed until 
the 1988 amendment was unconstitutional 
as written, the entire statute should not fall 
on account of the defect in a relatively 
unimportant part, and the action against 
one who furnished alcoholic beverages to an 
underage child for the child's use without 
the permission of the child's parent was 
vested in a parent, to be brought by either of 
them or jointly by both of them. Stepperson, 
Inc. v. Long, 256 Ga. 838, 353 S.E.2d 461 
(1987). 

Consent of the minor to drink alcohol was 
of no consequence since the cause of action 



106 



51-1-18 



GENERAL PROVISIONS 



51-1-18 



lay with the minor's parents. McNamee v. 
A.J.W., 238 Ga. App. 534, 519 S.E.2d 298 
(1999). 

Section 51-1-40, which precludes recovery 
by a consumer against provider, did not 
apply in an action by parents for damages 
under this section. Eldridge v. Aronson, 221 
Ga. App. 662, 472 S.E.2d 497 (1996). 

"Custodial parent" construed. — The par- 
ent with custody of a minor pursuant to a 
court order is the "custodial parent." Leach 
v. Braswell, 804 F. Supp. 1551 (S.D. Ga. 
1992), aff'd, 8 F.3d 37 (11th Cir. 1993). 

Summary judgment for lessor of store 
which sold beer to minor. — Defendant oil 
company was entitled to summary judgment, 
where, although beer was sold to plaintiff's 
minor son at a filling station/convenience 
store leased by defendant, defendant had no 
control over the time, manner and method 
of operating the store. Leach v. Brilad Oil 
Co., 753 F. Supp. 366 (S.D. Ga. 1991). 

The fact that defendant did not personally 
attend the party at which alcoholic beverages 
were provided to plaintiffs' underage son 
did not settle the question of whether he 
"furnished" beverages within the meaning 
of this section. Eldridge v. Aronson, 221 Ga. 
App. 662, 472 S.E.2d 497 (1996). 

Damages recoverable. — In a suit brought 
upon a right of action under this section, the 
plaintiff may recover both general and spe- 
cial damages. Wright v. Smith, 128 Ga. 432, 
57S.E. 684 (1907). 

Damages recoverable under this section 
by a parent may be limited to general and 
special damages suffered direcdy by the par- 
ent, as opposed to damages the parent may 
have to pay to a third person. Sutter v. 
Hutchings, 254 Ga. 194, 327 S.E.2d 716 
(1985). 

Damages under subsection (a) are limited 
to vindictive damages authorized by 
§ 51-12-6 because the legislature has de- 
clared, in § 51-1-40 (a), that the consump- 
tion of alcohol, rather than the furnishing of 



alcohol, is the proximate cause of any 
self-inflicted injury to an intoxicated minor. 
Leach v. Braswell, 804 F. Supp. 1551 (S.D. 
Ga. 1992), aff'd, 8 F.3d 37 (11th Cir. 1993). 

Liability for injuries to consumer of alco- 
hol. — A provider of alcohol cannot be held 
liable to a consumer of alcohol for injuries 
sustained as a result of such consumption. 
Steedley v. Huntley's Jiffy Stores, Inc., 209 
Ga. App. 23, 432 S.E.2d 625 (1993). 

Legal and medical expenses. — Father of 
19 year old son who lived with him had no 
right of action under subsection (a) to re- 
cover the legal, medical, and other expenses 
which he incurred on his son's behalf. Burch 
v. Uokuni Int'l, Inc., 192 Ga. App. 861, 386 
S.E.2d889 (1989). 

Discovery of defendant's worldly circum- 
stances. — In an action under subsection (a) 
by a parent for furnishing alcoholic bever- 
ages to his or her underage child without the 
parent's consent, where the parent has 
prayed for general, special, § 51-12-5, and 
§ 51-12-6 damages, and she has not yet 
made an election to forego all other dam- 
ages in favor of § 51-12-6 damages, the trial 
court is correct in denying her motion to 
compel discovery of defendant's worldly cir- 
cumstances. If, however, the parent timely 
amends her complaint to abandon all claims 
except one for § 51-12-6 damages, she will 
be entitled to discover defendant's worldly 
circumstances. Stepperson, Inc. v. Long, 256 
Ga. 838, 353 S.E.2d 461 (1987). 

Cited in Edwards v. Monroe, 54 Ga. App. 
791, 189 S.E. 419 (1936); Hosford v. 
Hosford, 58 Ga. App. 188, 198 S.E. 289 
(1938);Doddv. Slater, 101 Ga. App. 358, 114 
S.E.2d 167 (1960); Keaton v. Kroger Co., 143 
Ga. App. 23, 237 S.E.2d 443 (1977); River- 
side Enters., Inc. v. Rahn, 171 Ga. App. 674, 
320 S.E.2d 595 (1984); Spivey v. Sellers, 185 
Ga. App. 241, 363 S.E.2d 856 (1987); 
Hansen v. Etheridge, 232 Ga. App. 408, 501 
S.E.2d5l7 (1998). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 45 Am. Jur. 2d, Intoxicat- 
ing Liquors, § 253 et seq. 

C.J.S. — 48 C.J.S., Intoxicating Liquors, 
§§ 259, 441. 

ALR. — Liability, under dramshop acts, of 



one who sells or furnishes liquor otherwise 
than in operation of regularly established 
liquor business, 8 ALR3d 1412. 

Criminal offense of selling liquor to a 
minor or permitting him to stay on licensed 



107 



51-1-19 



TORTS 



51-1-19 



premises as affected by ignorance or mistake 
regarding his age, 12 ALR3d 991. 

Contributory negligence allegedly con- 
tributing to cause of injury as defense in 
Civil Damage Act proceeding, 64 ALR3d 
849. 

Proof of causation of intoxication as a 
prerequisite to recovery under Civil Damage 
Act, 64 ALR3d 882. 

Civil Damage Act: liability of one who 
furnishes liquor to another for consumption 
by third parties, for injury caused by con- 
sumer, 64 ALR3d 922. 

Liability of state or municipality in tort 
action for damages arising out of sale of 
intoxicating liquor by state or municipally 
operated liquor store or establishment, 95 
ALR3d 1243. 



Common-law right of action for damage 
sustained by plaintiff in consequence of sale 
or gift of intoxicating liquor or 
habit-forming drug to another, 97 ALR3d 
528; 62 ALR4th 16. 

Intoxicating liquors: employer's liability 
for furnishing or permitting liquor on social 
occasion, 51 ALR4th 1048. 

Social host's liability for injuries incurred 
by third parties as a result of intoxicated 
guest's negligence, 62 ALR4th 16. 

Liability of independent accountant to 
investors or shareholders, 48 ALR5th 389. 

Social host's liability for death or injuries 
incurred by person to whom alcohol was 
served, 54 ALR5th 313. 



51-1-19. Negligence by person given trust or confidence for consideration. 

When trust or confidence is reposed in a person in consideration of the 
payment or promise of a reward to him, negligence in the person trusted 
which results in injury to the other person shall give the injured party a 
right of action. (Orig. Code 1863, § 2948; Code 1868, § 2955; Code 1873, 
§ 3006; Code 1882, § 3006; Civil Code 1895, § 3867; Civil Code 1910, 
§ 4463; Code 1933, § 105-1201.) 

JUDICIAL DECISIONS 



Standing to bring suit. — In a class action 
brought by a beneficiary of a trust holding a 
participating unit in the common trust fund 
of a bank, alleging that the bank made 
imprudent investments which resulted in 
losses, the class members, i.e., beneficiaries 
of other participating trusts, had standing, 
having possibly suffered injury. The bank, 
which had an adverse interest in the litiga- 
tion, was not required to bring suit against 
itself. Meyer v. Citizens & S. Nat'l Bank, 106 
F.R.D. 356 (M.D. Ga. 1985). 

Trust holding title to utility property. — 
The statutory provisions of former 
§ 53-13-51, imposing a general duty to exer- 
cise ordinary care in the preservation and 
protection of trust property in the posses- 



sion of the trustee, and of this section, 
imposing general liability upon a compen- 
sated trustee for his negligence, were inap- 
plicable since the underlying purpose of the 
trust to hold title to certain utility property 
was neither to transfer to the uncompen- 
sated trustee immediate possession of the 
utility corporation's property nor to impose 
any immediate duty on the trustee to under- 
take the operation and maintenance of the 
corporation's water system. Smith v. Hawks, 
182 Ga. App. 379, 355 S.E.2d 669 (1987). 

Cited in Mobley v. Phinizy, 42 Ga. App. 33, 
155 S.E. 73 (1930); Citizens 8c S. Nat'l Bank 
v. Haskins, 254 Ga. 131, 327 S.E.2d 192 
(1985). 



RESEARCH REFERENCES 



Am. Jur. 2d. 

§ 397 et seq. 



76 Am. Jur. 2d, Trusts, 



C.J.S. — 90 C.J.S., Trusts, §§ 252-254. 
ALR. — Individual liability of trustee or 



108 



51-1-20 



GENERAL PROVISIONS 



51-1-20 



other fiduciary for injury to person or prop- 
erty of third person due to negligence, vio- 
lation of statute or ordinance, in manage- 
ment of trust estate, 123 ALR 458. 

Employer's liability for action of trustees 
or similar body administering employer's 
pension plan, 54 ALR3d 189. 

Liability of insurance agent or broker on 
ground of inadequacy of liability insurance 
coverage procured, 72 ALR3d 704. 

Liability of insurance agent or broker on 
ground of inadequacy of life, health, and 
accident insurance coverage procured, 72 
ALR3d 735. 



Liability of insurance agent or broker on 
ground of inadequacy of property insurance 
coverage procured, 72 ALR3d 747. 

Liability of bank, to other than party 
whose financial condition is misrepresented, 
for erroneous credit information furnished 
by bank or its directors, officers, or employ- 
ees, 77 ALR3d 6. 

Liability of estate for tort of executor, 
administrator, or trustee, 82 ALR3d 892. 

Liability of insurance agent or broker for 
placing insurance with insolvent carrier, 42 
ALR5th 199. 



51-1-20. Liability of persons serving charitable organizations and public 
entities while acting in good faith. 



(a) A person serving with or without compensation as a member, 
director, or trustee, or as an officer of the board without compensation, of 
any nonprofit hospital or association or of any nonprofit, charitable, or 
eleemosynary institution or organization or of any local governmental 
agency, board, authority, or entity shall be immune from civil liability for 
any act or any omission to act arising out of such service if such person was 
acting in good faith within the scope of his or her official actions and dudes 
and unless the damage or injury was caused by the willful or wanton 
misconduct of such person. 

(b) As used in this Code section, the term "compensation" shall not 
include reimbursement for reasonable expenses related to said services. 

(c) This Code section shall not affect any immunity of any person arising 
from any source, whether or not such person may additionally be subject to 
and possess an immunity provided by this Code section. The immunity 
provided by this Code section shall be supplemental to any such existing 
immunity. (Ga. L. 1969, p. 709, § 1; Ga. L. 1987, p. 915, § 2; Ga. L. 1987, 
p. 986, § 1.) 



Law reviews. — For article, "The Tort 
Liability of a Charitable Institution," see 5 
Ga. B.J. 25 (1942). For article, "Hospital 
Liability for Negligent Care in Georgia," see 
17 Ga. BJ. 18 (1954). For article analyzing 
doctrine of immunity from tort liability en- 
joyed by charitable institutions, see 24 Ga. 
BJ. 201 (1961). 

For note on the status of the charitable 
immunity doctrine, see 10 Mercer L. Rev. 
323 (1959). For note advocating uniformity 
in doctrine of charitable immunity, see 23 
Ga. BJ. 398 (1961). 



For comment on Cox v. Dejarnette, 104 
Ga. App. 664, 123 S.E.2d 16 (1961), see 24 
Ga. BJ. 536 (1962). For comment on Will- 
iams v. Hospital Auth., 1 19 Ga. App. 626, 168 
S.E.2d 336 (1969), see 6 Ga. St. BJ. 209 
(1969). For comment advocating abolition 
of the doctrine of charitable immunity in 
light of Abernathy v. Sisters of St. Mary's, 446 
S.W.2d 599 (Mo. 1969), see 21 Mercer L. 
Rev. 521 (1970). 



109 



51-1-20 



TORTS 



51-1-20 



JUDICIAL DECISIONS 



Scope of immunity. — The immunity of 
this section extends to public, charitable, or 
nonprofit institutions or organizations gen- 
erally and is not limited to hospitals and 
other health care institutions and organiza- 
tions. Bunkley v. Hendrix, 164 Ga. App. 401, 
296S.E.2d223 (1982). 

Actions in violation of Open Meetings Act. 
— Actions taken by members of county 
airport authority which may have violated 
the Open Meetings Act did not lose their 
character as actions taken within the scope 
of the members' official duties for purposes 
of immunity. Atlanta Air motive, Inc. v. Royal, 
214 Ga. App. 760, 449 S.E.2d 315 (1994). 

Mere negligence. — The county planning 
commission members could not be held 
personally liable based upon the mere neg- 
ligent performance of their duties. Dyches v. 
McCorkle, 212 Ga. App. 209, 441 S.E.2d 518 
(1994). 

Immunity upheld. — The record was de- 
void of conduct that would lift the county 
planning commission members' shield of 
immunity. Dyches v. McCorkle, 212 Ga. App. 
209, 441 S.E.2d 518 (1994). 

Immunity not upheld. — Although it was 
undisputed that defendant was a member of 
the association which sponsored the seminar 
for which he was a speaker, there was no 
evidence that his participation in the semi- 



nar was within the scope of any official 
actions and duties owed to the association; 
therefore, he was not entitled to immunity 
for any liability regarding seminar material 
he distributed. Zarach v. Adanta Claims 
Ass'n., 231 Ga. App. 685, 500 S.E.2d 1 
(1998). 

Members of county airport authority were 
en tided to immunity from personal liability 
where their complained of actions were 
taken in good faith within the scope of their 
official duties with the authority and the 
complained of damage was not caused by 
any wilful or wanton misconduct. Adanta 
Airmotive, Inc. v. Royal, 214 Ga. App. 760, 
449S.E.2d315 (1994). 

Owner or proprietor of private hospital or 
sanitarium which is operated for profit and 
not for charity is liable for injuries to pa- 
tients due to negligence of nurses or other 
employees. A private hospital operated for 
pecuniary profit owes to the patient the duty 
to use reasonable care for his safety, and 
reasonable skill and diligence in nursing and 
caring for him. Porter v. Patterson, 107 Ga. 
App. 64, 129S.E.2d70 (1962). 

Cited in Golf Club Co. v. Rothstein, 97 Ga. 
App. 128, 102 S.E.2d 654 (1958); Johnson v. 
Metropolitan Adanta Rapid Transit Auth., 
207 Ga. App. 869, 429 S.E.2d 285 (1993). 



OPINIONS OF THE ATTORNEY GENERAL 



Private Industry Councils, created by the 
federal Job Training Partnership Act, are 
non-profit organizations and charitable insti- 
tutions within the class of organizations spec- 
ified in this Code section; however, while the 



general nature of a council brings it within 
the parameters of the section, each immu- 
nity issue must be decided on a case-by-case 
basis. 1988 Op. Att'y Gen. No. 88-6. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 40A Am. Jur. 2d, Hospitals 
and Asylums, §§ 27 et seq., 40. 

C.J.S. — 41 C.J.S., Hospitals, §§ 20, 21. 

ALR. — Liability of private, noncharitable 
hospital or sanitarium for improper care or 
treatment of patients, 22 ALR 341; 39 ALR 
1431; 124 ALR 186. 

Personal liability of member of voluntary 
association not organized for personal profit 
on contract with third person, 41 ALR 754. 

Immunity of charitable institution from 



liability for personal injuries as affecting 
right to recover for and defense available in 
action by it for services, 100 ALR 1335. 

Immunity from liability for damages in 
tort of state or governmental unit or agency 
in operating hospital, 25 ALR2d 203. 

Liability of hospital to patient injured 
through defective wheelchair or similar fur- 
niture or appliance, 31 ALR2d 1118. 

Hospital's liability for injury or death in 
obstetrical cases, 37 ALR2d 1284. 



110 



51-1-20 



GENERAL PROVISIONS 



51-1-20 



Hospital's liability as to diagnosis and care 
of patients brought to emergency ward, 72 
ALR2d 396. 

Hospital's liability for injury to patient 
from heat lamp or pad or hot-water bottle, 
72 ALR2d 408. 

Liability for injury or death due to physi- 
cal condition of church premises, 80 ALR2d 
806. 

Hospital's liability for exposing patient to 
extraneous infection or contagion, 96 
ALR2d 1205. 

Res ipsa loquitur in action against hospital 
for injury to patient, 9 ALR3d 1315; 49 
ALR4th 63. 

Hospital's liability to patient for injury 
sustained from defective equipment fur- 
nished by hospital for use in diagnosis or 
treatment of patient, 14 ALR3d 1254. 

Malpractice: liability of physician or hospi- 
tal where patient suffers heart attack or the 
like while undergoing unrelated medical 
procedure, 17 ALR3d 796. 

Hospital's liability for injuries sustained by 
patient as a result of restraints imposed on 
movement, 25 ALR3d 1450. 

Hospital's liability for injury or death to 
patient resulting from or connected with 
administration of anesthetic, 31 ALR3d 
1114. 

Liability of hospital for refusal to admit or 
treat patient, 35 ALR3d 841. 

Immunity of private schools and institu- 
tions of higher learning from liability in tort, 
38 ALR3d 480. 

Tort liability of public schools and institu- 
tions of higher learning for injuries resulting 
from lack or insufficiency of supervision, 38 
ALR3d 830. 

Tort liability of private schools and institu- 
tions of higher learning for negligence of, or 
lack of supervision by, teachers and other 
employees or agents, 38 ALR3d 908. 

Hospital's liability for injury allegedly 
caused by improper diet or feeding of pa- 
tient, 42 ALR3d 736. 

Liability of governmental entity or public 
officer for personal injury or damages aris- 
ing out of vehicular accident due to negli- 
gent or defective design of a highway, 45 
ALR3d 875; 58 ALR4th 559. 

Liability of hospital for injury caused 
through assault by a patient, 48 ALR3d 1288. 

Hospital's liability to patient for injury 
allegedly sustained from absence of particu- 



lar equipment intended for use in diagnosis 
or treatment of patient, 50 ALR3d 1141. 

Hospital's liability for negligence in selec- 
tion or appointment of staff physician or 
surgeon, 51 ALR3d 981. 

Liability of hospital, other than mental 
institution, for suicide of patient, 60 ALR3d 
880. 

Liability of member of unincorporated 
association for tortious acts of association's 
nonmember agent or employee, 62 ALR3d 
1165. 

Coverage and exclusions under hospital 
professional liability or indemnity policy, 65 
ALR3d 969. 

Liability of charitable organization under 
respondeat superior doctrine for tort of un- 
paid volunteer, 82 ALR3d 1213. 

Patient tort liability of rest, convalescent, 
or nursing homes, 83 ALR3d 871. 

Damage liability of state or local public 
employees' union officials for unlawful work 
stoppage, 84 ALR3d 336. 

Hospital's liability for patient's injury or 
death as result of fall from bed, 9 ALR4th 
149. 

Hospital's liability for negligence in failing 
to review or supervise treatment given by 
doctor, or to require consultation, 12 
ALR4th 57. 

Liability for wrongful autopsy, 18 ALR4th 
858. 

Tort immunity of nongovernmental char- 
ities — modern status, 25 ALR4th 517. 

Hospital's liability for patient's injury or 
death resulting from escape or attempted 
escape, 37 ALR4th 200. 

Liability of hospital or clinic for sexual 
relationships with patients by staff physi- 
cians, psychologists, and other healers, 45 
ALR4th 289. 

Liability of hospital, physician, or other 
medical personnel for death or injury to 
mother or child caused by improper admin- 
istration of, or failure to administer, anesthe- 
sia or tranquilizers, or similar drugs, during 
labor and delivery, 1 ALR5th 269. 

Hospital's liability for injury resulting 
from failure to have sufficient number of 
nurses on duty, 2 ALR5th 286. 

Liability of hospital, physician, or other 
medical personnel for death or injury to 
child caused by improper postdelivery diag- 
nosis, care, and representations, 2 ALR5th 
811. 



Ill 



51-1-20.1 torts 51-1-20.1 

Liability of physician, nurse, or hospital medical personnel for death or injury to 

for failure to contact physician or keep phy- mother caused by improper postdelivery di- 

sician sufficiently informed concerning sta- agnosis, care, and representations, 6 ALR5th 

tus of mother during pregnancy, labor, and 534. 

childbirth, 3 ALR5th 123. Liability for personal injury or death alleg- 

Liability of hospital, physician, or other edly caused by defect in church premises, 8 

medical personnel for death or injury to ALR5th 1. 

mother or child caused by improper proce- Right of one governmental subdivision to 

dures during vaginal delivery, 4 ALR5th 210. sue another such subdivision for damages, 

Liability of hospital, physician, or other 11 ALR5th 630. 

51-1-20.1. Liability of volunteers, employees, or officers of nonprofit 
association conducting or sponsoring sports or safety program; 
liability of association. 

(a) As used in this Code section, the term: 

(1) "Compensation" does not mean or include any gift, any reim- 
bursement for any reasonable expense incurred for the benefit of a 
nonprofit athletic program, or, in the case of an umpire or referee, a 
modest honorarium. 

(2) "Nonprofit association" means any entity which is organized as a 
nonprofit corporation or a nonprofit unincorporated association under 
the laws of this state, including, but not limited to, youth or sports 
associations, volunteer fire associations, or religious, charitable, fraternal, 
veterans, civic, county fair, or agricultural associations, or any separately 
chartered auxiliary of the foregoing, if organized and operated on a 
nonprofit basis. 

(3) "Safety program" means a program designed for education and 
training with respect to safety and accident prevention as related to the 
home, vehicle maintenance and operation, boating, hunting, firearms, 
self-protection, fire hazards, or other activity which may involve exposures 
to personal injury or property damage. 

(4) "Sports program" means any program or organized activity: 

(A) Which conducts any competitive sport which is formally recog- 
nized as a sport, on the date on which any cause of action arises to 
which this Code section is applicable, by the United States Olympic 
Committee as specified by and under the jurisdiction of the Amateur 
Sports Act of 1978, Public Law 95-606, 36 U.S.C. Section 371, et seq., 
the Amateur Athletic Union, or the National Collegiate Athletic 
Association; and 

(B) Which is organized for recreational purposes and related train- 
ing and education and the activities of which are substantially for such 
purpose. 

(5) "Volunteer" means any person rendering services as a manager, 
coach, instructor, umpire, or referee, or assistant to such person, who 
performs such services without compensation. 

112 



51-1-21 GENERAL PROVISIONS 51-1-21 

(b) Except as provided in subsection (c) of this Code section, no person 
who is a volunteer for a sports program or safety program of a nonprofit 
association, or any employee or officer of such nonprofit association 
conducting or sponsoring such sports or safety program, shall be liable to 
any person as a result of any acts or omissions in rendering such services or 
in conducting or sponsoring such sports or safety programs if such person 
was acting in good faith within the scope of his or her assigned duties and 
unless the conduct of such person amounts to willful and wanton miscon- 
duct or gross negligence; provided, however, the defense of immunity is 
waived as to those actions for the recovery of damages against such persons 
for which liability insurance protection for such claims has been provided, 
but such waiver shall only apply to the extent of any liability insurance so 
provided. 

(c) Nothing in this Code section shall be construed as affecting or 
modifying the liability of such volunteers, employees, officers, or a non- 
profit association for acts or omissions relating to the transportation of 
participants in a sports program or safety program to or from a game, 
training session, event, or practice, or relating to the care and maintenance 
of real estate unrelated to the practice, training, or playing areas which such 
volunteers, employees, officers, or a nonprofit association owns, possesses, 
or controls. 

(d) This Code section shall apply to any cause of action arising on or 
after July 1, 1988. (Code 1981, § 51-1-20.1, enacted by Ga. L. 1988, p. 38S, 
§ 1.) 

Code Commission notes. — Pursuant to Pursuant to Code Section 28-9-5, in 1996, 

Code Section 28-9-5, in 1989, "owns, pos- a comma was inserted following "36 U.S.C. 
sesses, or controls" was substituted for "own, Section 371" in subparagraph (a)(4)(A). 
possess, or control" at the end of subsection 
(c). 

51-1-21. Liability of owner of watercraft for torts generally. 

(a) As used in this Code section, the term: 

(1) "Owner" means a person other than a secured party who has tide 
to personal property or who has the use and possession of personal 
property subject to a security interest. 

(2) "Watercraft" means any boat, vessel, or craft, other than a 
seaplane, used as a means of transportation on water. 

(b) The owner of a watercraft shall be liable for any tort caused by the 
operation of the watercraft, in the same manner and to the same degree as 
the owner of an automobile is liable for torts caused by its operation. (Code 
1933, § 105-108.1, enacted by Ga. L. 1968, p. 1416, § 1.) 



113 



51-1-21 



TORTS 



51-1-21 



Cross references. — Operation of water- 
craft generally, Ch. 7, T. 52. 

Law reviews. — For article, "Motorboat 



Collisions and the Family Purpose Doc- 
trine," see 2 Ga. St. B.J. 473 (1966). 



JUDICIAL DECISIONS 



Family purpose doctrine applies not only 
to driving of automobiles, but to operation 
of motorboats as well. Quattlebaum v. 
Wallace, 156 Ga. App. 519, 275 S.E.2d 104 
(1980). 

Section is narrowly construed. — Al- 
though the family purpose doctrine was ex- 
tended to a boat by this section, it will not be 
judicially extended to riding lawnmowers. 
Maddox v. Queen, 150 Ga. App. 408, 257 
S.E.2d918 (1979). 

Application of family purpose doctrine. — 
There are four requirements for the appli- 
cation of the family purpose doctrine: (1) 
the owner must have given permission to a 
family member to drive the vehicle, (2) the 
owner must have relinquished control of the 
vehicle to the family member, (3) the family 
member must be in the vehicle, and (4) the 
vehicle must be engaged in a family purpose. 
Quatdebaum v. Wallace, 156 Ga. App. 519, 
275S.E.2d 104 (1980). 

Not applicable where control of vehicle 



assumed without authority. — The trial court 
erred in finding the family purpose doctrine 
applicable where the uncontroverted evi- 
dence indicates that only the appellant was 
authorized to operate the motorboat, and 
his stepson had in the past only been per- 
mitted to drive the boat with the appellant 
present and presumably in control, where 
never before the date of the accident had 
the appellant ever permitted another person 
to control the operation of the boat, and 
where appellant had neither given his step- 
son permission to drive the boat on the day 
in question nor to allow anyone else other 
than whom he designated to drive the boat. 
Quatdebaum v. Wallace, 156 Ga. App. 519, 
275 S.E.2d 104 (1980). 

Cited in Stephens v. Stewart, 118 Ga. App. 
811, 165 S.E.2d 572 (1968); Kimbell v. 
DuBose, 139 Ga. App. 224, 228 S.E.2d 205 
(1976); Wallace v. Lessard, 248 Ga. 575, 285 
S.E.2d 14 (1981). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 2 Am. Jur. 2d, Admiralty, 
§ 83 et seq. 74 Am. Jur. 2d, Torts, § 51 et 
seq. 

C.J.S. — 2 C.J.S., Admiralty, § 62 et seq. 

ALR. — Action for death caused by mari- 
time tort within a state's territorial waters, 71 
ALR2d 1296. 

Shipowner's liability to longshoreman for 
injuries due to aspects of unseaworthiness 
brought about by acts of stevedore company 
or latter's servants, 77 ALR2d 829. 

Res ipsa loquitur with respect to personal 
injuries or death on or about ship, 1 ALR3d 
642. 

Liability for injury to or death of passen- 
ger in connection with a fire drill or 
abandon men t-of-ship drill aboard a vessel, 8 
ALR3d 650. 



Validity, enforceability, and effect of provi- 
sion in seamen's employment contract stip- 
ulating the maximum recovery for sched- 
uled personal injuries, 9 ALR3d 417. 

Liability of owner of powerboat for injury 
or death allegedly caused by one permitted 
to operate boat by owner, 71 ALR3d 1018. 

Liability of owner or operator of boat 
livery for injury to patron, 94 ALR3d 876. 

Liability of owner or operator of powered 
pleasure boat for injuries to swimmer or 
bather struck by boat, 98 ALR3d 1127. 

Liability of owner or operator of pleasure 
boat for injury or death of guest passenger, 
35 ALR4th 104. 

Liability for injuries to, or death of water 
skiers, 34 ALR5th 77. 



114 



51-1-22 



GENERAL PROVISIONS 



51-1-22 



51-1-22. Owner's liability for negligent operation of vessel; express or 
implied consent prerequisite. 

The owner of a vessel shall be liable for any injury or damage occasioned 
by the negligent operation of the vessel, whether the negligence consists of 
a violation of the statutes of this state or of neglecting to observe such 
ordinary care in such operation as the rules of common law require. The 
owner shall not be liable, however, unless the vessel is being used with his or 
her express or implied consent. It shall be presumed that the vessel is being 
operated with the knowledge and consent of the owner if, at the time of the 
injury or damage, the vessel is under the control of his or her spouse, father, 
mother, brother, sister, son, daughter, or other immediate member of the 
owner's family. Nothing contained in this Code section shall be construed 
to relieve any other person from any liability which he would otherwise have 
nor shall anything contained in this Code section be construed to authorize 
or permit any recovery in excess of injury or damage actually incurred. (Ga. 
L. 1968, p. 487, § 10; Ga. L. 1973, p. 1427, § 20.) 



Gross references. — Operation of water- 
craft generally, Ch. 7, T. 52. 

Law reviews. — For article, "Motorboat 



Collisions and the Family Purpose Doc- 
trine," see 2 Ga. St. B.J. 473 (1966). 



JUDICIAL DECISIONS 



Constitutionality. — In the absence of any 
cases addressing the constitutionality of 
owner-consent statutes with regard to boats, 
the reasoning of owner-consent automobile 
cases which have been held constitutional 
has equal application to boats. Therefore, 
this section is constitutional. Gunn v. 
Booker, 259 Ga. 343, 381 S.E.2d 286 (1989). 

Statutory presumption does not codify 
family purpose doctrine. — This Code sec- 
tion's presumption that a vessel is being 
operated with the owner's consent if it is 
under the control of an immediate family 
member is not a codification of the family 
purpose doctrine but is merely an 
evidentiary tool to aid a plaintiff in proving 
consent. The presumption cannot be con- 
fined solely to the members of an owner's 
household. Gunn v. Booker, 259 Ga. 343, 381 
S.E.2d286 (1989). 

This section has two prongs. It first pro- 
vides that the owner of a vessel shall be liable 
for any injury or damage occasioned by the 
negligent operation of such vessel while such 



vessel is being used with the owner's consent, 
either express or implied, and to this extent 
this section is broader than the family pur- 
pose doctrine. The section goes on to pro- 
vide that it shall be presumed that the vessel 
is being operated with the owner's consent if 
it is under the control of an immediate 
family member. This presumption is akin to 
the family purpose doctrine. Wallace v. 
Lessard, 248 Ga. 575, 285 S.E.2d 14 (1981). 

Presumption referred to in this section 
obtains only when the boat is under the 
control on an immediate member of the 
owner's family. Wallace v. Lessard, 158 Ga. 
App. 772, 282 S.E.2d 153, aff 'd, 248 Ga. 575, 
285 S.E.2d 14 (1981). 

No liability if no negligence or misfea- 
sance. — Regardless of state law character- 
ization, the Federal Tort Claims Act itself 
precludes the imposition of liability if there 
has been no negligence or other form of 
misfeasance and nonfeasance on the part of 
the government. Craine v. United States, 722 
F.2d 1523 (11th Cir. 1984). 



115 



51-1-23 



TORTS 



51-1-23 



RESEARCH REFERENCES 



Am. Jur. 2d. — 2 Am. Jur. 2d, Admiralty, 
§ 83 et seq. 

C.J.S. — 2 C.J.S., Admiralty, § 62 et seq. 

ALR. — Law of general average as affected 
by fact that necessity for sacrifice or expen- 
diture was due to negligent navigation, 25 
ALR 154. 

Liability of owner or operator of motor- 
boat for injury or damage, 63 ALR2d 343; 71 
ALR3d 1018; 98 ALR3d 1018. 

Liability for marine collision as affected by 
failure to provide or use radar on vessel, 82 
ALR2d 764. 

Shipowner's liability for injury caused to 
seaman or longshoreman by cargo or its 
stowage, 90 ALR2d 710. 



Res ipsa loquitur with respect to personal 
injuries or death on or about ship, 1 ALR3d 
642. 

Liability for injury to or death of passen- 
ger in connection with a fire drill or 
abandonment-of-ship drill aboard a vessel, 8 
ALR3d 650. 

Liability of owner of powerboat for injury 
or death allegedly caused by one permitted 
to operate boat by owner, 71 ALR3d 1018. 

Liability of owner or operator of boat 
livery for injury to patron, 94 ALR3d 876. 

Liability of owner or operator of powered 
pleasure boat for injuries to swimmer or 
bather struck by boat, 98 ALR3d 1127. 



51-1-23. Sale of unwholesome provisions. 

Any person who knowingly or negligently sells unwholesome provisions 
of any kind to another person, the defect being unknown to the purchaser, 
by the use of which damage results to the purchaser or to his family, shall 
be liable in damages for such injury. (Orig. Code 1863, § 2945; Code 1868, 
§ 2952; Code 1873, § 3003; Code 1882, § 3003; Civil Code 1895, § 3864; 
Civil Code 1910, § 4460; Code 1933, § 105-1101.) 



Cross references. — Warranties relating 
to sales of goods, § 11-2-312 et seq. Adulter- 
ated food, § 26-2-26. 



Law reviews. — For comment on Davis v. 
Williams, 58 Ga. App. 274, 198 S.E. 357 
(1938), see 1 Ga. B.J. 41 (1939). 



JUDICIAL DECISIONS 



Analysis 



General Consideration 
Applicability to Specific Cases 



General Consideration 

This section is applicable to principals and 
not agents. Crosby v. Calaway, 65 Ga. App. 
266, 16S.E.2d 155 (1941). 

One who negligently furnishes food or 
drink containing foreign substance which 
causes injury may be held liable therefor. 
Ray v. Deas, 112 Ga. App. 191, 144 S.E.2d 468 
(1965). 

Liability of vendor is not that of insurer. 
Rowe v. Louisville & N.R.R., 29 Ga. App. 151, 
113 S.E. 823 (1922). 

Knowledge of defect or negligence by 
supplier essential to action. — With respect 



to the sale of specified articles intended for 
human consumption or use, either knowl- 
edge of the defect or negligence by the seller 
is an essential element. Lovett v. Emory 
Univ., Inc., 116 Ga. App. 277, 156 S.E.2d 923 
(1967). 

Actual knowledge not necessary if defen- 
dant ought to have known food was bad, — 
It is not necessary that it appear that the 
defendant had actual knowledge that food 
sold was unwholesome or spoiled and con- 
taminated, but it is sufficient if it appears 
that the defendant ought to have known of 
the bad condition of the food. Dupee v. 
Great Atl. & Pac. Tea Co., 69 Ga. App. 144, 



116 



51-1-23 



GENERAL PROVISIONS 



51-1-23 



24 S.E.2d 858 (1943); Ray v. Deas, 112 Ga. 
App. 191, 144 S.E.2d 468 (1965). 

Plaintiff must establish negligence either 
in law or fact. — In a suit for damages 
against a seller of unwholesome food the 
plaintiff may establish negligence as a matter 
of fact, or he may show negligence as a 
matter of law by establishing a breach of a 
statutory duty imposed by the provisions of 
the pure food and drug laws, or he may rely 
on both classes of negligence. Norris v. Pig'n 
Whistle Sandwich Shop, Inc., 79 Ga. App. 
369, 53 S.E.2d 718 (1949). 

Persons who engage in business of fur- 
nishing food for human consumption are 
bound to exercise due care and diligence 
respecting its fitness and they may be held 
liable in damages, if, by reason of any negli- 
gence on their part, contaminated and 
spoiled or unwholesome food is sold and 
persons are made ill and suffer damages as 
the result of eating such food. Dupee v. 
Great All. & Pac. Tea Co., 69 Ga. App. 144, 
24S.E.2d858 (1943). 

Ordinary care is proper degree of care 
under this section. — The degree of care 
required of defendant baking company, in 
preparing pie which allegedly made plain- 
tiffs ill, was ordinary care. Criswell Baking 
Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 
136 (1948). 

Violation of this section not negligence 
per se. — The liability described by this 
section is simply the common law liability for 
injury to another through negligence, as a 
matter of fact, and a violation of this section, 
which refers to private rights and based on 
common law principles, is not negligence 
per se. Burns v. Colonial Stores, Inc., 90 Ga. 
App. 492, 83 S.E.2d 259 (1954). 

Violation of other regulatory statutes may 
constitute negligence per se. — Evidence 
authorized the jury to find that defendant, 
in selling fish to plaintiff, had violated the 
former version of the pure-food statute and 
therefore was guilty of negligence as a mat- 
ter of law. Southern Grocery Stores, Inc. v. 
Donehoo, 59 Ga. App. 212, 200 S.E. 335 
(1938). 

General allegations of negligence suffi- 
cient in pleadings. — Petition charging the 
defendant with negligence in selling impure 
food resulting in injury need not set out 
specific acts of negligence on part of defen- 
dant, in order to withstand test of a motion 



to dismiss; but such general allegations as 
that the defendant was negligent in selling 
such food when he knew or by exercise of 
ordinary care could have known that this 
would result in injury are to be deemed 
sufficient in law. Howard v. Phillips, 44 Ga. 
App. 233, 161 S.E. 163 (1931). 

The description of the substance con- 
tained in the pie, by the use of language 
"that defendant was negligent in permitting 
said putrid, tainted, impure, deleterious, un- 
wholesome, and poisonous substance to be- 
come an ingredient of said product" and 
similar language, was sufficient to put the 
defendant on notice of the nature and what 
caused the illness of and damage to the 
plaintiffs. Criswell Baking Co. v. Milligan, 77 
Ga. App. 861, 50 S.E.2d 136 (1948). 

Not necessary to allege knowledge by de- 
fendant. — Under this section it is not 
necessary to aver that the defendant knew of 
the injurious quality of the food. It is suffi- 
cient if it appears that he ought to have 
known of it and was negligent in furnishing 
unwholesome food, by reason whereof the 
plaintiff was injured. McPherson v. Capuano 
& Co., 31 Ga. App. 82, 121 S.E. 580 (1923). 

Plaintiff should allege his own lack of 
fault. — Where, in a suit against the seller of 
allegedly poison bootleg whisky, the petition 
was silent as to whether or not the defect was 
unknown to the purchaser and whether she 
was without negligence on her own part in 
exercising the degree of diligence required 
by law, this was a fatal defect in the petition. 
Rivers v. Weems, 208 Ga. 783, 69 S.E.2d 756 
(1952). 

Plaintiff's prima facie case. — Where 
plaintiff established the unwholesome qual- 
ity of the food, with injury from its consump- 
tion, these facts in themselves would suffi- 
ciently speak of the defendant's negligence 
to make a prima facie case; and until the 
defendant is exonerated, the jury would be 
authorized to apply the maxim res ipsa 
loquitur, and to find such issue in favor of 
the plaintiff. Criswell Baking Co. v. Milligan, 
77 Ga. App. 861, 50 S.E.2d 136 (1948). 

Proof of merely becoming sick after eat- 
ing food insufficient. — Proof by one claim- 
ing to have been injured by eating food 
furnished to him at a public restaurant or 
delicatessen, merely that he ate the food and 
in consequence became sick, would not es- 
tablish the averment that the food was un- 



117 



51-1-23 



TORTS 



51-1-23 



General Consideration (Cont'd) 

wholesome under this section. McPherson v. 
Capuano 8c Co., 31 Ga. App. 82, 121 S.E. 580 
(1923). 

To establish a claim under this section 
there must be evidence that the food was 
unwholesome. A mere showing that a person 
became sick subsequent to eating food is 
insufficient. Stevenson v. Winn-Dixie At- 
lanta, Inc., 211 Ga. App. 572, 440 S.E.2d 465 
(1993). 

Jury instruction on defendant's burden to 
rebut prima facie case. — The charge of the 
court that where plaintiffs might establish 
the unwholesome quality of food and estab- 
lish injury from its consumption, and estab- 
lish that the food as consumed by them was 
in the same condition as when it left the 
custody, possession, and control of the de- 
fendant, these facts in themselves would 
sufficiently set forth defendant's negligence 
and make out a prima facie case, and the 
burden would be upon the defendant to 
show that the defendant used due care in 
the premises was not error against the de- 
fendant. Criswell Baking Co. v. Milligan, 77 
Ga. App. 861, 50 S.E.2d 136 (1948). 

Cited in Smith v. Williams, 117 Ga. 782, 45 
S.E. 394, 97 Am. St. R. 220 (1903); Fleetwood 
v. Swift 8c Co., 27 Ga. App. 502, 108 S.E. 909 
(1921); Maddox Coffee Co. v. Collins, 46 Ga. 
App. 220, 167 S.E. 306 (1932); Davis v. 
Williams, 58 Ga. App. 274, 198 S.E. 357 
(1938); Donaldson v. Great Atl. 8c Pac. Tea 
Co., 186 Ga. 870, 199 S.E. 213 (1938); HJ. 
Heinz Co. v. Fortson, 62 Ga. App. 130, 8 
S.E. 2d 443 (1940); Armour 8c Co. v. Roberts, 
63 Ga. App. 846, 12 S.E.2d 376 (1940); Yeo v. 
Pig 8c Whistle Sandwich Shops, Inc., 83 Ga. 
App. 91, 62 S.E.2d 668 (1950); Bailey v. F.W. 
Woolworth, Inc., 106 Ga. App. 264, 126 
S.E.2d 686 (1962); Chambley v. Apple Res- 
taurants, Inc., 233 Ga. App. 498, 504 S.E.2d 
551 (1998). 

Applicability to Specific Cases 

Bagel distributor. — Even though bagels 
were not packaged or wrapped when sold at 
retail, a distributor was not liable for injuries 
caused by a staple baked into a bagel, since it 
could not be expected to open for inspec- 
tion individual bagels baked by another. 
Thomasson v. Rich Prods. Corp., 232 Ga. 
App. 424, 502 S.E.2d 289 (1998). 



Beverage bottler. — A manufacturer who 
makes and bottles for public consumption a 
beverage represented to be harmless and 
refreshing is under a legal duty not to neg- 
ligently allow a foreign substance which is 
injurious to the human stomach, such as bits 
of broken glass, to be present in a bottle of 
the beverage when it is placed on sale; and 
one who, relying on this obligation and 
without negligence on his own part, swallows 
several pieces of glass while drinking the 
beverage from a bottle, may recover from 
the manufacturer for injuries sustained in 
consequence. Adanta Coca-Cola Bottling 
Co. v. Shipp, 41 Ga. App. 705, 154 S.E. 385 
(1930). 

It cannot be said as a matter of law that the 
plaintiff, in drinking from the bottle of 
Coca-Cola which had previously been un- 
opened, without first making an examina- 
tion of its contents, was, as a matter of law, 
guilty of such a failure to exercise ordinary 
care for her own safety as would bar a 
recovery, or that the jury was not authorized, 
despite the evidence on behalf of the defen- 
dant as to the manner and method and 
degree of care exercised by it in conducting 
its business of bottling beverages, to apply 
the doctrine of res ipsa loquitur and find 
against the defendant upon the issue as to its 
negligence. Cordell v. Macon Coca-Cola Bot- 
tling Co., 56 Ga. App. 117, 192 S.E. 228 
(1937). 

Whether the defendant bottlers and ven- 
dors exercised due care and diligence in 
performing their admitted duty not to sell a 
bottle of Coca-Cola with flies in it, and 
whether the plaintiff, by the exercise of 
ordinary care, could have avoided the al- 
leged injury to herself resulting from the 
alleged negligence of the defendants, were 
questions of fact for a jury. Cordell v. Macon 
Coca-Cola Bottling Co., 56 Ga. App. 117, 192 
S.E. 228 (1937). 

Case brought against botding company by 
individual who purchased and drank por- 
tion of soft drink containing dead roach was 
one which under the evidence should have 
been submitted to a jury on the question of 
negligence, and it was error to grant a 
nonsuit. Whited v. Atlantic Coca-Cola Bot- 
tling Co., 88 Ga. App. 241, 76 S.E.2d 408 
(1953). 

Ice cream retail dealer. — A retail dealer 
who dispenses ice cream to its customers by 



118 



51-1-23 



GENERAL PROVISIONS 



51-1-23 



removing it in small quantities from the 
container in which the ice cream was fur- 
nished to the dealer by the manufacturer, 
and the servant of the dealer who actually 
serves and dispenses the ice cream by remov- 
ing it from the container to be delivered to 
the customer, owe a duty to the customer to 
exercise ordinary care to see that the ice 
cream so furnished is free from harmful and 
deleterious foreign matter, notwithstanding 
the ice cream, when furnished by the dealer 
to the customer, contained therein glass as a 
result of the negligence of the manufacturer. 
Crowley v. Lane Drug Stores, Inc., 54 Ga. 



App. 859, 189 S.E. 380 (1937). 

In a suit by the customer against the 
manufacturer of ice cream, the dealer, and 
the servant of the dealer, to recover damages 
for injuries alleged to have been received by 
the plaintiff when consuming ice cream with 
glass in it which had been served to him as a 
customer of the dealer, where the evidence 
indicated that the glass was in the ice cream 
when delivered from the manufacturer to 
the dealer, a verdict for the plaintiff against 
the defendants would have been authorized. 
Crowley v. Lane Drug Stores, Inc., 54 Ga. 
App. 859, 189 S.E. 380 (1936). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 63 Am. Jur. 2d, Products 
Liability § 1 et seq. 

CJ.S. — 72 C.J.S. Supp., Products Liabil- 
ity, § 2 et seq. 

ALR. — Presumption of negligence from 
foreign substance in food, 4 ALR 1559; 47 
ALR 148; 105 ALR 1039; 171 ALR 1209. 

Seller's duty to ascertain at his peril that 
articles of food conform to food regulations, 
28 ALR 1385. 

Illness after partaking of food or drink as 
evidence of negligence on part of one who 
prepared or sold it, 49 ALR 592. 

Statutory provisions relating to purity of 
food products as applicable to foreign sub- 
stances which get into product as result of 
accident or negligence, and not by purpose 
or design, 98 ALR 1496. 

Knowledge or actual negligence on part of 
seller which is not an element of criminal 
offense under penal statute relating sale of 
unfit food or other commodity, as condition 
of civil action in tort in which violation of the 
statute is relied upon as negligence per se or 
evidence of negligence, 128 ALR 464. 

Infected or tainted condition of milk or 
other food, or contamination in water, and 
its causation of the sickness of the consumer, 
as inferable from such sickness, 130 ALR 
616. 

Liability of manufacturer or packer of 
defective article for injury to person or prop- 
erty of ultimate consumer who purchased 
from middleman, 140 ALR 191; 142 ALR 
1490. 

Implied warranty of reasonable fitness of 
food for human consumption as breached 



by substance natural to the original product 
and not removed in processing, 143 ALR 
1421. 

Implied warranty of fitness by one serving 
food, 7 ALR2d 1027; 87 ALR4th 804; 90 
ALR4th 12. 

Recovery for loss of business resulting 
from resale of unwholesome food or bever- 
ages furnished by another, 17 ALR2d 1379. 

Liability of manufacturer or seller for in- 
jury caused by food or food product sold, 77 
ALR2d7. 

Liability of manufacturer or seller for in- 
jury caused by beverage sold, 77 ALR2d 215. 

Master and servant: employer's liability for 
injury caused by food or drink purchased by 
employee in plant facilities, 50 ALR3d 505. 

Products liability: necessity and sufficiency 
of identification of defendant as manufac- 
turer or seller of product alleged to have 
caused injury, 51 ALR3d 1344. 

Liability of water supplier for damages 
resulting from furnishing impure water, 54 
ALR3d 936. 

Liability of packer, foodstore, or restau- 
rant for causing trichinosis, 96 ALR3d 451. 

Liability for injury or death allegedly 
caused by spoilage or contamination of bev- 
erage, 87 ALR4th 804. 

Liability for injury or death allegedly 
caused by foreign substance in beverage, 90 
ALR4th 12. 

Liability for injury or death allegedly 
caused by foreign object in food or food 
product, 1 ALR5th 1. 

Liability for injury or death allegedly 
caused by spoilage, contamination, or other 



119 



51-1-24 



TORTS 



51-1-24 



deleterious condition of food or food prod- caused by food product containing object 
uct, 2 ALR5th 1. related to, but not intended to be present in, 

Liability for injury or death allegedly product, 2 ALR5th 189. 

51-1-24. Sale of adulterated drugs or alcoholic beverages. 

Any person who knowingly or negligently, by himself or his agent, sells 
adulterated drugs or alcoholic beverages to another person, by the use of 
which damage accrues to the purchaser, his patients, his family, or his 
property, shall be liable in damages for the injury done. (Orig. Code 1863, 
§ 2946; Code 1868, § 2953; Code 1873, § 3004; Code 1882, § 3004; Civil 
Code 1895, § 3865; Civil Code 1910, § 4461; Code 1933, § 105-1102.) 



Cross references. — Warranties relating 
to sales of goods generally, § 1 1-2-312 et seq. 



Pharmacists and 
§ 26-4-1 et seq. 



pharmacies generally, 



JUDICIAL DECISIONS 



Knowledge of defect or negligence by 
supplier essential to action. — With respect 
to the sale of specified articles intended for 
human consumption or use, either knowl- 
edge of the defect or negligence by the seller 
is an essential element. Lovett v. Emory 
Univ., Inc., 116 Ga. App. 277, 156 S.E.2d 923 
(1967). 

Druggist not liable where he had no knowl- 
edge of adulterated condition. — Druggist 



who sold to customer an original unbroken 
package of proprietary medicine which was 
called for by the customer was not guilty of 
negligence because the contents of such 
package were "old, aged, stale, worm-eaten, 
deleterious, and unfit" for human consump- 
tion, where it did not appear that the drug- 
gist knew of such condition. Howard v. 
Jacobs' Pharmacy Co., 55 Ga. App. 163, 189 
S.E. 373 (1937). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 63 Am. Jur. 2d, Products 
Liability, § 601 et seq. 63A Am. Jur. 2d, 
Products Liability, §§ 1167, 1249, 1255. 63B 
Am. Jur. 2d, Products Liability, §§ 2019, 
2020. 

C.J.S. — 28 C.J.S. Drugs and Narcotics, 
§§ 10, 45 et seq. 

ALR. — Liability of manufacturer or seller 
for injury caused by beverage sold, 77 
ALR2d 215. 

Liability of manufacturer or seller for in- 
jury caused by drug or medicine sold, 79 
ALR2d301. 

Liability, under dramshop acts, of one who 
sells or furnishes liquor otherwise than in 
operation of regularly established liquor 
business, 8 ALR3d 1412. 

Liability of manufacturer or seller for in- 
jury or death allegedly caused by use of 
contraceptive, 70 ALR3d 315. 



Liability of manufacturer or seller for in- 
jury or death allegedly caused by failure to 
warn regarding danger in use of vaccine or 
prescription drug, 94 ALR3d 748. 

Liability of manufacturer of oral live polio 
(Sabin) vaccine for injury or death from its 
administration, 66 ALR4th 83. 

Liability for injury or death allegedly 
caused by spoilage or contamination of bev- 
erage, 87 ALR4th 804. 

Liability for injury or death allegedly 
caused by foreign substance in beverage, 90 
ALR4th 12. 

Malpractice: physician's liability for injury 
or death resulting from side effects of drugs 
intentionally administered to or prescribed 
for patient, 47 ALR5th 433. 

Liability of manufacturer or seller for in- 
jury or death allegedly caused by use of 
contraceptive, 54 ALR5th 1. 



120 



51-1-25 



GENERAL PROVISIONS 



51-1-25 



51-1-25. Furnishing of wrong article or medicine by vender of drugs and 
medicines. 

If a vender of drugs and medicines, by himself or his agent, either 
knowingly or negligently furnishes the wrong article or medicine and 
damage accrues to the purchaser, his patients, his family, or his property 
from the use of the drug or medicine furnished, the vender shall be liable 
for the injury done. (Orig. Code 1863, § 2947; Code 1868, § 2954; Code 
1873, § 3005; Code 1882, § 3005; Civil Code 1895, § 3866; Civil Code 1910, 
§ 4462; Code 1933, § 105-1103.) 

Cross references. — Pharmacists and 
pharmacies generally, § 26-4-1 et seq. 

JUDICIAL DECISIONS 



Codification of common-law duty. — This 
Code section does nothing more than codify, 
with respect to vendors of drugs and medi- 
cines, the general common-law duty of all 
persons to exercise reasonable care and dil- 
igence to avoid injuring others. Sparks v. 
Kroger Co., 200 Ga. App. 135, 407 S.E.2d 
105 (1991). 

Druggist impliedly warrants that article he 
sells is article called for, and is liable for 
breach of such warrantyfor injury resulting 
in giving the purchaser the wrong article. 
Watkins v. Jacobs Pharmacy Co., 48 Ga. App. 
38, 171 S.E. 830 (1933). 

Legal doctrine caveat emptor should in 
cases of vendors of drugs be caveat vendor. 
Watkins v. Jacobs Pharmacy Co., 48 Ga. App. 
38, 171 S.E. 830 (1933). 

Knowledge of defect or negligence by 
supplier essential to action. — With respect 
to the sale of specified articles intended for 
human consumption or use, either knowl- 



edge of the defect or negligence by the seller 
is an essential element. Lovett v. Emory 
Univ., Inc., 116 Ga. App. 277, 156 S.E.2d 923 
(1967). 

Professional malpractice. — Where a ven- 
dor of drugs or medicines is a licensed 
pharmacist and is sued on the basis of alle- 
gations that he negligently dispensed the 
wrong drug in filling a medical prescription, 
the claim against him clearly is for profes- 
sional malpractice. Sparks v. Kroger Co., 200 
Ga. App. 135, 407 S.E.2d 105 (1991). 

There is nothing in this Code section 
which would obviate the need for compli- 
ance with § 9-11-9.1, which requires an affi- 
davit to accompany a charge of professional 
malpractice. Sparks v. Kroger Co., 200 Ga. 
App. 135, 407 S.E.2d 105 (1991). 

Cited in Lewis v. Brannen, 6 Ga. App. 419, 
65 S.E. 189 (1909); Jacobs Pharmacy Co. v. 
Gipson, 116 Ga. App. 760, 159 S.E.2d 171 
(1967). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 63 Am. Jur. 2d, Products 
Liability, § 601 et seq. 63A Am. Jur. 2d, 
Products Liability, §§ 1167, 1249, 1255. 63B 
Am. Jur. 2d, Products Liability, §§ 2019, 
2020. 

C.J.S. — 28 C.J.S., Drugs and Narcotics, 
§§ 51, 53. 

ALR. — Liability of druggist for injury in 
consequence of mistake, 31 ALR 1336; 44 
ALR 1482. 

Liability of druggist for punitive damages, 
31 ALR 1362. 



Civil liability of pharmacist who fills accu- 
rately an improper prescription or one call- 
ing for an unusual dose, 80 ALR 452. 

Liability of manufacturer or seller for in- 
jury caused by drug or medicine sold, 79 
ALR2d301. 

Hospital's liability for negligence in con- 
nection with preparation, storage, or dis- 
pensing of drug or medicine, 9 ALR3d 579. 

Malpractice: doctor's liability for mistak- 
enly administering drug, 23 ALR3d 1334. 

Druggist's civil liability for suicide con- 



121 



51-1-26 



TORTS 



51-1-27 



summated with drugs furnished by him, 58 
ALR3d 828. 

Liability of manufacturer or seller for in- 
jury or death allegedly caused by failure to 
warn regarding danger in use of vaccine or 
prescription drug, 94 ALR3d 748. 

Promotional efforts directed toward pre- 
scribing physician as affecting prescription 



drug manufacturer's liability for product- 
caused injury, 94 ALR3d 1080. 

Druggist's civil liability for injuries sus- 
tained as result of negligence in incorrectly 
filling drug prescriptions, 3 ALR4th 270. 

Liability of pharmacist who accurately fill 
prescription for harm resulting to user, 44 
ALR5th 393. 



51-1-26. Survivability of actions under Code Sections 51-1-23 through 
51-1-25. 

If death ensues as a result of any injury or damage in any case arising 
under Code Section 51-1-23, 51-1-24, or 51-1-25, the right of action for such 
death shall survive as provided in Chapter 4 of this tide. (Orig. Code 1863, 
§ 2947; Code 1868, § 2954; Code 1873, § 3005; Code 1882, § 3005; Civil 
Code 1895, § 3866; Civil Code 1910, § 4462; Code 1933, § 105-1104.) 

RESEARCH REFERENCES 



Am. Jur. 2d. — 22A Am. Jur. 2d, Death, 
§ 93 et seq. 

C.J.S. — 25A C.J.S., Death, § 32 et seq. 

ALR. — Validity of exception for specific 
kind of tort action in survival statute, 77 
ALR3d 1349. 



Claim for punitive damages in tort action 
as surviving death of tortfeasor or person 
wronged, 30 ALR4th 707. 



51-1-27. Recovery for medical malpractice authorized. 

A person professing to practice surgery or the administering of medicine 
for compensation must bring to the exercise of his profession a reasonable 
degree of care and skill. Any injury resulting from a want of such care and 
skill shall be a tort for which a recovery may be had. (Orig. Code 1863, 
§ 2915; Code 1868, § 2922; Code 1873, § 2973; Code 1882, § 2973; Civil 
Code 1895, § 3831; Civil Code 1910, § 4427; Code 1933, § 84-924.) 



Cross references. — Time limitations for 
bringing of actions for medical malpractice, 
§ 9-3-70 et seq. Giving of consent for surgi- 
cal or medical treatment, Ch. 9, T. 31. Ob- 
servance of provisions of "living wills" by 
physicians and other health-care profession- 
als, § 31-32-7. Recovery in tort for malprac- 
tice of chiropractor, § 43-9-16. Regulation of 
practice of physicians generally, § 43-34-20 
et seq. Suspension of license to practice 
medicine and other disciplining of physi- 
cians, § 43-34-37. 

Law reviews. — For article, "No-Fault 
Insurance for Injuries Arising From Medical 
Treatment: A Proposal for Elective Cover- 
age," see 24 Emory L.J. 21 (1975). For 



article analyzing the trend in this country 
toward no-fault liability, see 25 Emory LJ. 
163 (1976). For article, "Baby Doe Cases: 
Compromise and Moral Dilemma," see 34 
Emory L.J. 545 (1985). For annual survey of 
law of torts, see 38 Mercer L. Rev. 351 
(1986). 

For note, "Summary Judgment in Medical 
Malpractice Actions," see 7 Ga. St. B.J. 470 
(1971). For note, "Informed Consent: The 
Illusion of Patient Choice," see 23 Emory 
L.J. 503 (1974). 

For comment on Specht v. Gaines, 65 Ga. 
App. 782, 16 S.E.2d 507 (1941), see 4 Ga. B.J. 
49 (1942). For comment on Saffold v. 
Scarborough, 91 Ga. App. 628, 86 S.E.2d 649 



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GENERAL PROVISIONS 



51-1-27 



(1955), holding that the running of the 
statute of limitations for medical malpractice 
was properly postponed due to allegations of 
fraud, and suit for alleged malpractice insti- 
tuted within two years after the discovery of 
such fraud was not barred, see 18 Ga. BJ. 79 
(1955). For comment on Carroll v. Griffin, 
96 Ga. App. 826, 101 S.E.2d 764 (1958), 
affirming a verdict for defendant-doctor 
when patient failed to prove he had been 
abandoned by the physician, see 21 Ga. BJ. 
105 (1958). For comment on Hayes v. 
Brown, 108 Ga. App. 360, 133 S.E.2d 102 



(1963), see 26 Ga. BJ. 456 (1964). For 
comment on Gian-Cursio v. State, Epstein v. 
State, 180 So.2d 396 (Fla. 1965), as to the 
appropriate school of practice for expert 
witnesses testifying in chiropractor malprac- 
tice cases, see 18 Mercer L. Rev. 292 (1966). 
For comment, "Legislative Limitations on 
Medical Malpractice Damages: The Chances 
of Survival," see 37 Mercer L. Rev. 1583 
(1986). For comment, "Medical Expert Sys- 
tems and Publisher Liability: A 
Cross-Contextual Analysis," see 43 Emory 
LJ. 731 (1994). 



JUDICIAL DECISIONS 



Analysis 



General Consideration 
Applicability to Special Cases 

1. Dentists 

2. Hospitals 

3. Unlicensed Practitioners 

4. Surgeons 
Pleading and Practice 



General Consideration 

Basis for a malpractice action is provided 
in this section. Hayes v. Brown, 108 Ga. App. 
360, 133S.E.2d 102 (1963). 

Malpractice defined. — Malpractice is a 
particular form of negligence which consists 
in not applying to the exercise of the prac- 
tice of medicine that degree of care and skill 
which is ordinarily employed by the profes- 
sion generally under similar conditions and 
like surrounding circumstances. Johnson v. 
Myers, 118 Ga. App. 773, 165 S.E.2d 739 
(1968). 

Cause of action for malpractice brought 
either in tort or in contract. — Under Geor- 
gia law malpractice actions may be brought 
either in tort or in contract and where a 
physician undertakes to treat a patient, even 
where there is no express agreement, an 
implied contract arises and the doctor 
impliedly warrants that he possesses the req- 
uisite skill to perform the treatment under- 
taken and that he will exercise ordinary skill 
and care. Scott v. Simpson, 46 Ga. App. 479, 
167 S.E. 920 (1933); Wolfe v. Virusky, 306 F. 
Supp. 519 (S.D. Ga. 1969), rev'd on other 
grounds, 470 F.2d 831 (5th Cir. 1972). 

Elements of liability. — There are three 
essential elements imposing liability upon 



which recovery is bottomed: (1) the duty 
inherent in the doctor-patient relationship; 
(2) the breach of that duty by failing to 
exercise the requisite degree of skill and 
care; and (3) that this failure be the proxi- 
mate cause of the injury sustained. Negli- 
gence alone is insufficient to sustain recov- 
ery. It must be proven that the injury 
complained of proximately resulted from 
such want of care or skill. A bare possibility 
of such result is not sufficient. Goggin v. 
Goldman, 209 Ga. App. 251, 433 S.E.2d 85 
(1993). 

There are three essential elements impos- 
ing liability upon which recovery is bot- 
tomed: (1) the duty inherent in the 
doctor-patient relationship; (2) the breach 
of that duty by failing to exercise the requi- 
site degree of skill and care; and (3) that this 
failure is the proximate cause of the injury 
sustained. Hawkins v. Greenberg, 166 Ga. 
App. 574, 304 S.E.2d 922 (1983). 

Physician's implied contract. — Whenever 
a physician undertakes to treat a patient, an 
implied contract arises that the physician 
possesses the necessary ordinary skill and 
experience possessed by those who practice 
the profession, and that he will use such 
ordinary care and skill in treating the pa- 
tient, and likewise an implied promise or 



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51-1-27 



General Consideration (Cont'd) 

obligation arises that such patient will com- 
pensate the physician in a reasonable sum 
for such services. Scott v. Simpson, 46 Ga. 
App. 479, 167S.E. 920 (1933). 

This section is applicable to physician who 
specializes in administering X-ray treatment. 
Kuttner v. Swanson, 59 Ga. App. 818, 2 
S.E.2d 230 (1939); Mason v. Hall, 72 Ga. 
App. 867, 35 S.E.2d 478 (1945). 

Provisions of this section apply also to a 
licensed dentist in the practice of his profes- 
sion. Bryan v. Grace, 63 Ga. App. 373, 11 
S.E.2d 241 (1940); Specht v. Gaines, 65 Ga. 
App. 782, 16 S.E.2d 507 (1941). 

This section is applicable to chiropractor 
who performs acts usually done by surgeon, 
and the giving of this section in charge is not 
error even if the chiropractor had done no 
act of surgery or administering medicine. 
Mims v. Ragland, 59 Ga. App. 703, 2 S.E.2d 
174 (1939); Gaines v. Wolcott, 119 Ga. App. 
313, 167S.E.2d366 (1969). 

Requisite standard of care and skill is that 
employed by profession generally. — The 
standard of care and skill fixed by the stat- 
ute, when applied to the facts and circum- 
stances of any particular case, must be taken 
and considered to be such a degree of care 
and skill as, under similar conditions and 
like surrounding circumstances, is ordinarily 
employed by the profession generally. 
Radcliffe v. Maddox, 45 Ga. App. 676, 165 
S.E. 841 (1932); Kuttner v. Swanson, 59 Ga. 
App. 818, 2 S.E.2d 230 (1939); Lord v. 
Claxton, 62 Ga. App. 526, 8 S.E.2d 657 
(1940); Bryan v. Grace, 63 Ga. App. 373, 11 
S.E.2d 241 (1940); Specht v. Gaines, 65 Ga. 
App. 782, 16 S.E.2d 507 (1941); Mason v. 
Hall, 72 Ga. App. 867, 35 S.E.2d 478 (1945); 
Webb v. Sandoz Chem. Works, Inc., 85 Ga. 
App. 405, 69 S.E.2d 689 (1952); Hayes v. 
Brown, 108 Ga. App. 360, 133 S.E.2d 102 
(1963); Rahn v. United States, 222 F. Supp. 
775 (S.D. Ga. 1963); Mull v. Emory Univ., 
Inc., 114 Ga. App. 63, 150 S.E.2d 276 (1966); 
Starr v. Fregosi, 370 F.2d 15 (5th Cir. 1966); 
Williams v. Ricks, 152 Ga. App. 555, 263 
S.E.2d 457 (1979); Fain v. Moore, 155 Ga. 
App. 209, 270 S.E.2d 375 (1980); Robertson 
v. Emory Univ. Hosp., 611 F.2d 604 (5th Cir. 
1980); Wagner v. Timms, 158 Ga. App. 538, 
281 S.E.2d 295 (1981); Blount v. Moore, 159 
Ga. App. 80, 282 S.E.2d 720 (1981); Hawkins 



v. Greenberg, 159 Ga. App. 302, 283 S.E.2d 
301 (1981), aff'd, 166 Ga. App. 574, 304 
S.E.2d 922 (1983); but see Felix v. State, 271 
Ga. 534, 523 S.E.2d 1 (1999). 

Reasonable belief standard. — The stan- 
dard determining whether a procedure was 
"therapeutically necessary" is whether the 
doctor exercised that degree of care, skill, 
and diligence which any other surgeon in 
the community would be required to employ 
in reaching a decision under the same or 
similar circumstances, in other words, the 
reasonable belief standard. Davidson v. 
Shirley, 616 F.2d 224 (5th Cir. 1980). 

Standard not limited to local practices. — 
This section which provides the "reasonable 
degree of care and skill" standard in the 
practice of medicine, does not further cir- 
cumscribe the requirement by limiting it to 
locality. Murphy v. Little, 112 Ga. App. 517, 
145 S.E.2d 760 (1965); Williams v. Ricks, 152 
Ga. App. 555, 263 S.E.2d 457 (1979). 

Georgia law requires evidence of compli- 
ance with the standards of the medical pro- 
fession generally and not compliance with 
local standards. Summerour v. Saint Joseph's 
Infirmary, Inc., 160 Ga. App. 187, 286 S.E.2d 
508 (1981). 

Jury may consider general practices in 
locality in determining care under the cir- 
cumstances. — The skill prescribed by this 
section is not such as is ordinarily employed 
by the profession in the particular locality or 
community; but the jury may, in determin- 
ing what is reasonable care and skill under 
the circumstances, consider the degree of 
care and skill practiced by the profession 
generally in the locality or community. 
Kuttner v. Swanson, 59 Ga. App. 818, 2 
S.E.2d 230 (1939); Mason v. Hall, 72 Ga. 
App. 867, 35 S.E.2d 478 (1945); Mull v. 
Emory Univ., Inc., 114 Ga. App. 63, 150 
S.E.2d 276 (1966); but see Felix v. State, 271 
Ga. 534, 523S.E.2d 1 (1999). 

However, plaintiff need not allege failure 
to follow local practices. — While the jury 
may consider the accepted medical practice 
in the local community in determining 
whether or not the failure to use or follow 
the alleged practices was an act of negli- 
gence, it is not necessary to so allege. Mull v. 
Emory Univ., Inc., 114 Ga. App. 63, 150 
S.E.2d 276 (1966); but see Felix v. State, 271 
Ga. 534, 523 S.E. 2d 1 (1999). 

Careful performance of authorized acts 
not defense to negligent performance of 



124 



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GENERAL PROVISIONS 



51-1-27 



unauthorized acts. — Where a surgeon en- 
ters into an agreement with a person merely 
to perform a certain operation, and the 
surgeon, in violation of the contract, goes 
farther, without an emergency, and per- 
forms another operation which is unautho- 
rized by the agreement, or by an emergency 
necessitating the additional operation, and 
injury results to the patient, the surgeon 
cannot relieve himself from liability by show- 
ing skill and care in the other operation. 
Lord v. Claxton, 62 Ga. App. 526, 8 S.E.2d 
657 (1940). 

Duty of care in making diagnosis. — Rel- 
ative to a diagnosis by a doctor for discover- 
ing the nature of an ailment, the general 
rule of law is that a patient is en tided to a 
thorough and careful examination such as 
the condition of the patient and the attend- 
ing circumstances will permit, with such 
diligence and method of diagnosis for dis- 
covering the nature of the ailment as are 
usually approved and practiced under simi- 
lar circumstances by members of his profes- 
sion in good standing. Pilgrim v. Landham, 
63 Ga. App. 451, 11 S.E.2d 420 (1940). 

Same degree of care and skill is required 
in making diagnosis as is required in treat- 
ment. Mull v. Emory Univ., Inc., 114 Ga. 
App. 63, 150 S.E.2d 276 (1966); but see Felix 
v. State, 271 Ga. 534, 523 S.E.2d 1 (1999). 

Improper diagnosis is not actionable per 
se, the issue being whether the physician has 
used reasonable care and diligence as a 
professional man. Hogan v. Almand, 131 Ga. 
App. 225, 205 S.E.2d 440 (1974). 

One physician may generally rely on diag- 
nosis of another. — Where a family physi- 
cian has diagnosed the case and given it as 
his opinion that the patient is suffering from 
a tumor and desires an operation or treat- 
ment by an expert, the expert has the right 
to rely on the diagnosis of the family physi- 
cian, and, in the absence of anything war- 
ranting a contrary conclusion, to perform 
the operation or give the treatment. Pilgrim 
v. Landham, 63 Ga. App. 451, 11 S.E.2d 420 
(1940). 

Duty to consult other physicians. — A 
doctor with knowledge that a patient needs 
treatment he is unable to provide has a duty 
to consult with a doctor more experienced 
in that particular field. Garbaccio v. Oglesby, 
675 F. Supp. 1342 (M.D. Ga. 1987). 

Standard for nurses. — There is no law 
prohibiting nurses from giving intravenous 



injections, therefore when such services are 
performed, the standard of care which 
should be imposed is the same as in regard 
to other authorized nursing activities. Deese 
v. Carroll City County Hosp., 203 Ga. App. 
148, 416 S.E.2d 127 (1992). 

The informed consent doctrine is not a 
viable principle of law in this state, therefore 
trial court did not err in precluding plaintiff 
from presenting evidence on the issue of 
whether plaintiff's consent to the surgical 
procedure was informed consent. Reece v. 
Selmonosky, 179 Ga. App. 718, 347 S.E.2d 
649 (1986). 

Failure of physician to remove sponge. — 
A physician is liable, under this section, 
where he negligently left a sponge in the 
body of a person after the operation was 
completed. Akridge v. Noble, 114 Ga. 949, 41 
S.E. 78 (1902). 

Improper placement of hand board be- 
neath patient. — Where placement of hand 
board which allegedly caused back injury to 
plaintiff was that of the nurses and was 
completed before the surgeon entered the 
operating room, and he did not supervise its 
placement, these acts preceded his appear- 
ance and were not made under his immedi- 
ate personal supervision so as to make any 
negligence of the nurses attributable to the 
surgeon. McClure v. Clayton County Hosp. 
Auth., 176 Ga. App. 414, 336 S.E.2d 268 
(1985). 

Transfer to another hospital. — Plaintiff 
failed to present any evidence of proximate 
causation, i.e., evidence within a reasonable 
degree of medical certainty that the dece- 
dent would have survived but for the defen- 
dant's alleged negligence, based on physi- 
cian's decision to transfer decedent to 
another hospital. Anthony v. Cham bless, 231 
Ga. App. 657, 500 S.E.2d 402 (1998). 

It is not mere possession of requisite 
professional skill, but its exercise, which is 
required. Chapman v. Radcliffe, 44 Ga. App. 
49, 162 S.E. 651 (1932); Kuttner v. Swanson, 
59 Ga. App. 818, 2 S.E.2d 230 (1939); Lord v. 
Claxton, 62 Ga. App. 526, 8 S.E.2d 657 
(1940); Bryan v. Grace, 63 Ga. App. 373, 11 
S.E.2d 241 (1940); Mull v. Emory Univ., Inc., 
114 Ga. App. 63, 150 S.E.2d 276 (1966); but 
see Felix v. State, 271 Ga. 534, 523 S.E.2d 1 
(1999). 

Failure to exercise care and skill may be 
accomplished by failure to exercise care 



125 



51-1-27 



TORTS 



51-1-27 



General Consideration (Cont'd) 

only, or by failure to exercise skill only, or by 
failure to do both. Richards v. Harpe, 42 Ga. 
App. 123, 155S.E. 85 (1930). 

In action for malpractice, law presumes 
that medical or surgical services were per- 
formed in ordinarily skillful manner, and 
burden of proof is on the plaintiff to show a 
want of due care, skill, and diligence on the 
part of the defendant. Yeates v. Boyd, 50 Ga. 
App. 331, 177 S.E. 921 (1935); Hayes v. 
Brown, 108 Ga. App. 360, 133 S.E.2d 102 
(1963); Washington v. City of Columbus, 136 
Ga. App. 682, 222 S.E.2d 583 (1975); 
Gunthorpe v. Daniels, 150 Ga. App. 113, 257 
S.E.2d 199 (1979); Evans v. DeKalb County 
Hosp. Auth., 154 Ga. App. 17, 267 S.E.2d 319 
(1980); Porubiansky v. Emory Univ., 156 Ga. 
App. 602, 275 S.E.2d 163 (1980); Stephen W. 
Brown Radiology Assocs. v. Gowers, 157 Ga. 
App. 770, 278 S.E.2d 653 (1981); Blount v. 
Moore, 159 Ga. App. 80, 282 S.E.2d 720 
(1981); Hawkins v. Greenberg, 166 Ga. App. 
574, 304 S.E.2d 922 (1983); Killingsworth v. 
Poon, 167 Ga. App. 653, 307 S.E.2d 123 
(1983). 

Plaintiff's expert affidavit. — Once the 
defendant in a malpractice suit has carried 
his burden on motion for summary judg- 
ment, the plaintiff must respond with an 
expert's affidavit which must state the partic- 
ulars in which the treatment was negligent, 
including an articulation of the minimum 
standard of acceptable professional conduct, 
and how and in what way defendant deviated 
therefrom. Sanders v. Ramo, 203 Ga. App. 
43, 416S.E.2d333 (1992). 

Doctor is not insurer and unintended re- 
sult does not raise even an inference of 
negligence. A physician cannot always effect 
a cure. Hayes v. Brown, 108 Ga. App. 360, 
133 S.E.2d 102 (1963); Blount v. Moore, 159 
Ga. App. 80, 282 S.E.2d 720 (1981). 

Physician not liable for unintended result 
if requisite care exercised. — Where a doc- 
tor or physician possesses the skill and learn- 
ing ordinarily, under similar circumstances, 
possessed by the members of his profession, 
and uses ordinary and reasonable care and 
diligence and his best judgment in the ap- 
plication of his skill to the case, he is not 
liable because his efforts to assist nature in 
effecting a cure did not bring about the 
desired result. Howell v. Jackson, 65 Ga. App. 



422, 16S.E.2d45 (1941). 

Prescribing drugs. — A physician does not 
have a legal duty upon each occasion of 
prescribing a potentially dangerous drug to 
inquire of any known allergies of the patient, 
but has the duty to determine the proper 
medication for each patient, weighing its 
benefits against its potential dangers. 
Hawkins v. Greenberg, 166 Ga. App. 574, 304 
S.E.2d 922 (1983). 

Physician who has been retained by third 
party, such as the Department of Human 
Resources, to undertake a medical examina- 
tion of an individual cannot be held liable to 
that individual for malpractice as a result of 
that examination, where he neither offered 
nor intended to treat, care for, or otherwise 
benefit the individual and did not injure him 
during the course of the examination, even 
though he failed to advise the individual of 
the results of the examination or to diagnose 
cancer based thereon. Peace v. Weisman, 186 
Ga. App. 697, 368 S.E.2d 319, cert, denied, 
186 Ga. App. 918, 368 S.E.2d 319 (1988). 

"Wrongful birth" actions shall not be rec- 
ognized in Georgia absent a clear mandate 
of such recognition by the legislature. At- 
lanta Obstetrics & Gynecology Group v. 
Abelson, 260 Ga. 711, 398 S.E.2d 557 (1990). 

The holding in Atlanta Obstetrics 8c Gyne- 
cology Group v. Abelson, 260 Ga. 711, 398 
S.E. 2d 557 (1990), which forecloses wrong- 
ful birth claims under Georgia law, was not 
infirm for depriving women of a remedy for 
the unconstitutional deprivation of their 
right to make a free and informed choice 
concerning termination of a pregnancy 
since there is no evidence that this remedy 
was ever contemplated by the Georgia legis- 
lature. Campbell v. United States, 795 F. 
Supp. 1127 (N.D. Ga. 1991), aff' d, 962 F.2d 
1579 (11th Cir. 1992), cert, denied, 507 U.S. 
909, 113 S. Ct. 1254, 122 L. Ed. 2d 653 
(1993). 

The Georgia Supreme Court's holding in 
Adanta Obstetrics 8c Gynecology Group v. 
Abelson, 260 Ga. 711, 398 S.E.2d 557 (1990) 
does not turn on quesdons of gender or 
other arbitrary classifications. Campbell v. 
United States, 795 F. Supp. 1127 (N.D. Ga. 
1991), aff'd, 962 F.2d 1579 (11th Cir. 1992), 
cert, denied, 507 U.S. 909, 113 S. Ct. 1254, 
122 L. Ed. 2d 653 (1993). 

Suicide. — The fact that patient's suicide 
was volitional did not make it a rational act, 



126 



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GENERAL PROVISIONS 



51-1-27 



nor did that alone relieve hospital and phy- 
sician of their duty to him. Brandvain v. 
Ridgeview Inst., Inc., 188 Ga. App. 106, 372 
S.E.2d 265 (1988), aff'd, 259 Ga. 376, 382 
S.E.2d597 (1989). 

Doctrine of res ipsa loquitur does not 
apply in malpractice suit. An unintended 
result does not raise an inference of negli- 
gence. It is presumed that medical or surgi- 
cal services were performed in an ordinarily 
skillful manner. Hayes v. Brown, 108 Ga. 
App. 360, 133 S.E.2d 102 (1963); Washing- 
ton v. City of Columbus, 136 Ga. App. 682, 
222S.E.2d583 (1975). 

Plaintiff must show defendant's negli- 
gence was proximate cause. — To prevail, 
plaintiff must show not only that the defen- 
dant was negligent but also that plaintiff's 
injury was proximately caused by the defen- 
dant's lack of care or skill. Robertson v. 
Emory Univ. Hosp., 611 F.2d 604 (5th Cir. 
1980). 

Cannot recover without proximate cause. 
— A plaintiff cannot recover for malpractice 
where there is not sufficient evidence that 
such physician's alleged failure to use the 
requisite degree of skill and diligence in 
treatment either proximately caused or con- 
tributed to cause plaintiff additional suffer- 
ing. Parrott v. Chatham County Hosp. Auth., 
145 Ga. App. 113, 243 S.E.2d 269 (1978). 

Causation is jury question. — Where, mea- 
sured by the method shown by medical 
witnesses to be negligence and the evidence, 
a bad result is shown, it is the province of the 
jury to say whether the result was caused by 
the negligence. Pilgrim v. Landham, 63 Ga. 
App. 451, 11 S.E.2d 420 (1940). 

Effect of plaintiff's contributory negli- 
gence. — Where from the allegations of the 
plaintiff's petition it is palpably clear that 
the injuries complained of were not caused 
from the failure of the physician to use 
reasonable care and skill but from the act of 
the plaintiff, the question of whether the 
physician has used such skill should be de- 
cided as a matter of law where a timely 
motion to dismiss has been filed. Robinson v. 
Campbell, 95 Ga. App. 240, 97 S.E.2d 544 
(1957). 

Cited in Smith v. Overby, 30 Ga. 241 
(1860); Edwards v. Roberts, 12 Ga. App. 140, 
76 S.E. 1054 (1913); Sweat v. Foster, 28 Ga. 
App. 360, 111 S.E. 66 (1922); Johnson v. 
Mitchell, 45 Ga. App. 414, 165 S.E. 140 



(1932); Slack v. Crawford, 131 F.2d 101 (5th 
Cir. 1942); Wall v. Brim, 138 F.2d 478 (5th 
Cir. 1943); Norton v. Hamilton, 92 Ga. App. 
727, 89 S.E.2d 809 (1955); Word v. 
Henderson, 110 Ga. App. 780, 140 S.E.2d 92 
(1964); Word v. Henderson, 220 Ga. 846, 
142 S.E.2d 244 (1965); Burnham v. Depart- 
ment of Pub. Health, 349 F. Supp. 1335 
(N.D. Ga. 1972); Bell v. Sigal, 129 Ga. App. 
249, 199 S.E.2d 355 (1973); Kenney v. Pied- 
mont Hosp., 136 Ga. App. 660, 222 S.E.2d 
162 (1975); Hogan v. City-County Hosp., 138 
Ga. App. 906, 227 S.E.2d 796 (1976); North 
Am. Co. for Life & Health Ins. v. Berger, 648 
F.2d 305 (5th Cir. 1981); Sullivan v. Henry, 
160 Ga. App. 791, 287 S.E.2d 652 (1982); 
Bradley Center, Inc. v. Wessner, 161 Ga. App. 
576, 287 S.E.2d 716 (1982); Sandford v. 
Howard, 161 Ga. App. 495, 288 S.E.2d 739 
(1982); GrindstafTv. Coleman, 681 F.2d 740 
(11th Cir. 1982); Dobbs v. Cobb E.N.T. 
Assocs., 165 Ga. App. 238, 299 S.E.2d 141 
(1983); Skinner v. Coleman-Nincic Urology 
Clinic, P.A., 165 Ga. App. 280, 300 S.E.2d 319 
(1983); Overstreet v. Nickelsen, 170 Ga. App. 
539, 317 S.E.2d 583 (1984); Lorentzson v. 
Rowell, 171 Ga. App. 821, 321 S.E.2d 341 
(1984); Central Anesthesia Assocs. P.C. v. 
Worthy, 173 Ga. App. 150, 325 S.E.2d 819 
(1984); Verre v. Allen, 175 Ga. App. 749, 334 
S.E.2d 350 (1985); Thomas v. Newnan 
Hosp., 185 Ga. App. 764, 365 S.E.2d 859 
(1988); Cutts v. Fulton-DeKalb Hosp. Auth., 
192 Ga. App. 517, 385 S.E.2d 436 (1989); 
Doctors Hosp. v. Bonner, 195 Ga. App. 152, 
392 S.E.2d 897 (1990); Williams v. Memorial 
Medical Ctr., Inc., 218 Ga. App. 107, 460 
S.E.2d 558 (1995); Roseberry v. Brooks, 218 
Ga. App. 202, 461 S.E.2d 262 (1995). 

Applicability to Special Cases 

1. Dentists 

Dentists under same duty of care as phy- 
sicians. — The duties and responsibilities of 
a dentist to his patient are controlled by the 
same rules of law as control the duties and 
responsibilities of a physician and surgeon. 
Gunthorpe v. Daniels, 150 Ga. App. 113, 257 
S.E.2d 199 (1979); Porubiansky v. Emory 
Univ., 156 Ga. App. 602, 275 S.E.2d 163 
(1980); Tumlin v. Daniels, 166 Ga. App. 635, 
305S.E.2d 145 (1983). 

Dentist's duty of care denned. — A dentist 
in practicing his profession is under the 



127 



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Applicability to Special Cases (Cont'd) 
1. Dentists (Cont'd) 

duty, not only to use the requisite care and 
skill in a particular operation, but also to 
give such after treatment to the patient as 
the necessity of the case demands, in the 
absence of any special agreement to the 
contrary. Specht v. Gaines, 65 Ga. App. 782, 
16S.E.2d507 (1941). 

The duty of one engaged in the practice of 
dentistry and medicine to "bring to the 
exercise of his profession a reasonable de- 
gree of care and skill" is an affirmative 
statutory duty imposed upon those who en- 
gage in professional practice. The obligation 
to practice under this standard must be 
viewed as a condition to the licensure of the 
state to engage in the practice of medicine 
and dentistry. Emory Univ. v. Porubiansky, 
248 Ga. 391, 282 S.E.2d 903 (1981). 

Duty not relieved by contract. — It is 
against the public policy of this state to allow 
one who procures a license to practice den- 
tistry to relieve himself by contract of the 
duty to exercise reasonable care. Emory 
Univ. v. Porubiansky, 248 Ga. 391, 282 S.E.2d 
903 (1981). 

Dentist is not an insurer or warrantor that 
the exercise of his professional judgment 
will effect a cure of the patient, nor is he 
obliged to bring to the exercise of his pro- 
fession the utmost skill. Bryan v. Grace, 63 
Ga. App. 373, 11 S.E.2d 241 (1940); Specht v. 
Gaines, 65 Ga. App. 782, 16 S.E.2d 507 
(1941); Kent v. Henson, 174 Ga. App. 400, 
330S.E.2d 126 (1985). 

Dentist not liable if requisite degree of 
care exercised. — If a dentist measures up to 
the qualifications and applies the reasonable 
care and skill legally required of him he is 
not responsible for a mistake of judgment; if, 
however, an error of judgment is so gross as 
to be inconsistent with that degree of care 
and skill which a dentist should possess and 
exercise, liability may result where an injury 
is produced. Bryan v. Grace, 63 Ga. App. 
373, 11 S.E.2d 241 (1940); Specht v. Gaines, 
65 Ga. App. 782, 16 S.E.2d 507 (1941). 

Presumption of due care. — The law 
presumes that a dentist performs his services 
with the proper degree of skill and care, and, 
except in extreme circumstances, the plain- 
tiff can overcome this presumption only 
through expert testimony. Tumlin v. Daniels, 



166 Ga. App. 635, 305 S.E.2d 145 (1983). 

Conclusory allegations of dentist's mis- 
judgment insufficient as pleadings. — Alle- 
gation that, in effect, it was an error of 
judgment on the part of the defendant in 
failing to extract the plaintiff's teeth 
amounted only to a conclusion or opinion of 
the pleader, and without supporting facts 
which would have made a jury question as to 
whether or not such conduct was equivalent 
to a lack of the legally required professional 
care and skill was not good against a motion 
to dismiss. Byran v. Grace, 63 Ga. App. 373, 
11 S.E.2d241 (1940). 

2. Hospitals 

Section applicable to hospitals. — While 
in the strict technical sense a hospital corpo- 
ration cannot be considered "a person pro- 
fessing to practice surgery or the administer- 
ing of medicine" under this section, it is 
common knowledge that hospitals do in fact 
administer medical treatment Richmond 
County Hosp. Auth. v. Haynes, 121 Ga. App. 
537, 174S.E.2d364 (1970). 

Hospital's duty of care analogous to that 
of physician. — The rule applicable against 
physicians in malpractice cases, that requires 
physicians to bring to the exercise of their 
profession a reasonable degree of care and 
skill applies equally to an action brought 
against a hospital where technical questions 
are involved and expert testimony by medi- 
cal witnesses is offered. Goodman v. St. Jo- 
seph's Infirmary, Inc., 144 Ga. App. 614, 241 
S.E.2d487 (1978). 

A private hospital in which patients are 
placed for treatment by their physicians, and 
which undertakes to care for the patients 
and supervise and look after them, is under 
the duty to exercise such reasonable care in 
looking after and protecting a patient as the 
patient's condition, which is known to the 
hospital through its agents and servants 
charged with the duty of looking after and 
supervising the patient, may require. Of 
course, the duties do not end until the 
relation of patient and physician and patient 
and hospital has ceased. Lord v. Claxton, 62 
Ga. App. 526, 8 S.E.2d 657 (1940). 

Elements for establishing liability. — 
There are three elements a plaintiff must 
establish to show a hospital's malpractice 
liability: (1) The duty of the hospital, (2) the 
breach of that duty by failing to exercise the 



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requisite degree of skill and care, and (3) 
that the failure of the hospital to exercise 
such requisite skill and care was the proxi- 
mate cause of the injury sustained. McClure 
v. Clayton County Hosp. Auth., 176 Ga. App. 
414, 336 S.E.2d 268 (1985). 

A patient-health care provider relationship 
was established between a hospital and par- 
ents who took their baby to the emergency 
room for any medical assistance needed and, 
on the strength of reassurances by a nurse 
that the baby was fine, left the hospital. 
South Fulton Medical Ctr. Inc. v. Poe, 224 
Ga. App. 107, 480 S.E.2d 40 (1996). 

Air Force hospital liable. — Air Force 
hospital's failure to diagnose plaintiff's 
hypercholesterolemia and heart disease, the 
failure of supervising physician to properly 
supervise physician's assistants and the fail- 
ure to provide thrombolytic therapy, 
breached the required standard of care and 
proximately caused plaintiff's myocardial 
infarction and the damage as a result 
thereof. The United States Air Force had a 
duty to conform to a standard of conduct 
raised by Georgia law for the protection of 
the plaintiff. MacDonald v. United States, 
853 F. Supp. 1430 (M.D. Ga. 1994). 

Hospital not negligent for acts of indepen- 
dent physician absent showing of negligence 
in permitting him to practice in hospital. — 
Where the attending physician was an inde- 
pendent contractor rather than an employee 
of the hospital, and it is not alleged that the 
hospital was negligent in having him on its 
staff or that it undertook to direct him in his 
treatment of the patient, the hospital cannot 
be held liable for his alleged negligence. 
Moore v. Carrington, 155 Ga. App. 12, 270 
S.E.2d222 (1980). 

Hospital is not liable for negligence of 
physician where the negligence relates to a 
matter of professional judgment on the part 
of the physician when the hospital does not 
exercise and has no right to exercise control 
in the diagnosis or treatment of illness or 
injury. Stewart v. Midani, 525 F. Supp. 843 
(N.D. Ga. 1981). 

Hospital is liable for lack of due care in 
selection of unskilled physician or surgeon 
as employee or member of staff, or directing 
him in a negligent manner as to the treat- 
ment of a hospital patient. Goodman v. St. 
Joseph's Infirmary, Inc., 144 Ga. App. 614, 
241 S.E.2d487 (1978). 



Administrative or clerical duties — 

Noncharitable hospital is liable for negli- 
gence of its nurses, orderlies, and other 
employees, in the performance of mere ad- 
ministrative or clerical duties, which, though 
constituting a part of the patient's pre- 
scribed medical treatment, do not require 
the application of specialized technique or 
the understanding of a skilled physician or 
surgeon and which duties are not performed 
under the direct supervision of the attend- 
ing physician. Goodman v. St. Joseph's Infir- 
mary, Inc., 144 Ga. App. 614, 241 S.E.2d 487 
(1978); Moore v. Carrington, 155 Ga. App. 
12, 270S.E.2d222 (1980). 

Negligent acts of employees. — A hospital 
may be liable for the negligent acts of its 
servants and employees in carrying out a 
physician's instructions in performing ad- 
ministrative or clerical acts requiring no 
medical judgment. Swindell v. St. Joseph's 
Hosp., 161 Ga. App. 290, 291 S.E.2d 1 
(1982). 

A doctor practicing in a city-owned and 
operated hospital is not protected by the 
sovereign immunity doctrine and is there- 
fore liable for his/her negligent actions. 
Jackson v. Miller, 176 Ga. App. 220, 335 
S.E.2d438 (1985). 

Telephone instructions from consultant. 
— Evidence did not support allegations that 
emergency room physician was negligent in 
failing to make certain that he understood 
consulting physician's telephone instruc- 
tions regarding drugs prescribed for a kid- 
ney patient, where the consultant's preoccu- 
pation with her work during the 
conversation was the more likely source of 
the error in communication. Garbaccio v. 
Oglesby, 675 F. Supp. 1342 (M.D. Ga. 1987). 

3. Unlicensed Practitioners 

Mere failure to have license to practice 
medicine or surgery will not authorize infer- 
ence of negligence where one attempts to 
treat or operate on another and injures him. 
Andrews v. Lofton, 80 Ga. App. 723, 57 
S.E.2d 338 (1950); Irwin v. Arrendale, 117 
Ga. App. 1, 159 S.E.2d 719 (1967). 

No cause will lie against unlicensed person 
absent causal link between defendant's ac- 
tions and plaintiff's injury. — Allegations 
that the duties and inhibitions imposed 
upon the defendant by the statutes as to the 
necessity of having a license to practice 



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Applicability to Special Cases (Cont'd) 
3. Unlicensed Practitioners (Cont'd) 

medicine or surgery were due to the plaintiff 
and her child personally, and as members of 
the public seeking medical and surgical care, 
and that the death of the child was a natural 
and probable consequence of the violation 
of such statutes by the defendant were sub- 
ject to motion to dismiss for failure to show 
anything having a causal relation to the 
death of the child. Andrews v. Lofton, 80 Ga. 
App. 723, 57 S.E.2d 338 (1950). 

Fact defendant is unlicensed may be per- 
tinent on other issues. — Allegations made 
as to the defendant falsely holding himself 
out as a physician and surgeon in violation of 
stated sections of the Code of Georgia, and 
that he did not possess the qualifications 
necessary for the possession of a license are 
pertinent by way of history or inducement as 
to why the plaintiff engaged the services of 
the defendant and for that reason should 
not be stricken on motion, though irrelevant 
on the question of defendant's negligence. 
Andrews v. Lofton, 80 Ga. App. 723, 57 
S.E.2d338 (1950). 

4. Surgeons 

Negligence of operating room personnel. 

— When a hospital yields control of its 
employees to a surgeon in the operating 
room and the surgeon exercises immediate 
personal supervision over these employees, 
then he becomes their master and their 
negligence during the course of the 
master-servant relationship will be imputed 
to him. Swindell v. St. Joseph's Hosp., 161 
Ga. App. 290, 291 S.E.2d 1 (1982). 

Pleading and Practice 

Privity required. — An action against a 
medical professional can be maintained only 
by one within the physician-patient relation- 
ship. Bradley Center, Inc. v. Wessner, 161 Ga. 
App. 576, 287 S.E.2d 716, aff 'd, 250 Ga. 199, 
296S.E.2d693 (1982). 

Sufficiency of pleadings. — Petition which 
shows such conduct on the part of the 
defendant as would authorize a jury to find 
that he had not exercised the requisite care 
and skill in treating and operating upon the 
plaintiff's daughter, and that such negli- 
gence was the proximate cause of the death 



of the child stated a cause of action for the 
child. Andrews v. Lofton, 80 Ga. App. 723, 57 
S.E.2d 338 (1950). 

The allegation that the defendant "knew 
or should have known" was a sufficient 
allegation as to knowledge, where defen- 
dant's duty arose from the legal relation of 
physician and patient. Frazier v. Davis, 94 Ga. 
App. 173, 94 S.E.2d 51 (1956). 

Plaintiff must prove defendant's negli- 
gence through expert medical testimony in 
order to prevail at trial. Starr v. Fregosi, 370 
F2d 15 (5th Cir. 1966); Self v. Executive 
Comm. of Ga. Baptist Convention of Ga., 
Inc., 245 Ga. 548, 266 S.E.2d 168 (1980); 
Parker v. Knight, 245 Ga. 782, 267 S.E.2d 222 
(1980); Larson v. Friedman & Snyder, 154 
Ga. App. 702, 269 S.E.2d 532 (1980). 

To establish professional medical negli- 
gence the evidence presented by the patient 
must show a violation of the degree of care 
and skill required of a physician. Hawkins v. 
Greenberg, 159 Ga. App. 302, 283 S.E.2d 
301 (1981). 

The question of compliance with the re- 
quired standards of this section must be 
presented through expert testimony. 
Wagner v. Timms, 158 Ga. App. 538, 281 
S.E.2d 295 (1981). 

A plaintiff asserting medical malpractice 
must present expert medical testimony to 
overcome the presumption of a physician's 
care, skill, and diligence. Jones v. Wike, 654 
F.2d 1129 (5th Cir. 1981). 

A physician can be his or her own expert 
witness. Moore v. Candler Gen. Hosp., 185 
Ga. App. 280, 363 S.E.2d 793 (1987). 

To avoid the grant of summary judgment 
in a medical malpractice suit, the plaintiff 
must counter a defendant's expert affidavit 
with a contrary expert opinion. Moore v. 
Candler Gen. Hosp., 185 Ga. App. 280, 363 
S.E.2d793 (1987). 

Expert testimony must establish requisite 
degree of care and skill. — The proper 
standard of measurement in determining 
whether a doctor exercised a reasonable 
degree of care and skill is to be established 
by testimony of physicians; for it is a medical 
question. Pilgrim v. Landham, 63 Ga. App. 
451, 11 S.E.2d 420 (1940); Self v. Executive 
Comm. of Ga. Baptist Convention of Ga., 
Inc., 245 Ga. 548, 266 S.E.2d 168 (1980); 
Robertson v. Emory Univ. Hosp., 611 F.2d 
604 (5th Cir. 1980); Blount v. Moore, 159 Ga. 
App. 80, 282 S.E.2d 720 (1981). 



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In malpractice actions, expert testimony is 
necessary to establish the parameters of ac- 
ceptable professional conduct, a significant 
deviation from which would constitute mal- 
practice. Franklin v. Elmer, 174 Ga. App. 
839, 332S.E.2d314 (1985). 

Required proof by plaintiff. — To over- 
come the presumption of due care and to 
show negligence in a medical malpractice 
case, it is usually required that the patient 
offer expert medical testimony to the effect 
that the defendant-doctor failed to exercise 
that degree of care and skill which would 
ordinarily have been employed by the med- 
ical profession generally under the circum- 
stances. Killingsworth v. Poon, 167 Ga. App. 
653, 307 S.E.2d 123 (1983). 

Need for contrary expert opinion not 
obviated. — Improper placement of a hand 
board underneath a patient is not such an 
obvious act of negligence, and is not so gross 
or clear and palpable act of negligence, to 
obviate the necessity for expert testimony to 
refute a defendant doctor's expert opinion 
that he was not negligent. McClure v. 
Clayton County Hosp. Auth., 176 Ga. App. 
414, 336 S.E.2d 268 (1985). 

When contrary expert opinion not re- 
quired. — The evidentiary burden on 
plaintiff-patients to produce such expert 
medical testimony as will overcome the pre- 
sumption of the physician's exercise of due 
care is not applicable in those cases where 
the asserted actionable negligence would 
appear to be so clear from the evidence then 
of record that expert testimony would, at 
that point, otherwise be unnecessary to es- 
tablish a prima facie case of malpractice. 
Killingsworth v. Poon, 167 Ga. App. 653, 307 
S.E.2d 123 (1983). 

The failure of a medical expert to use 
"magic words'* in accusing a colleague of 
negligence in a medical malpractice case will 
not deprive his opinion of all efficacy where 
it is clear that the witness is of the opinion 
that the colleague failed to exercise due care 
in treating the patient. Tysinger v. Smisson, 
176 Ga. App. 604, 337 S.E.2d 49 (1985). 

The "pronounced results" exception to 
the general evidentiary rule requiring the 
plaintiff to produce expert testimony encom- 
passes only those exceedingly rare cases 
wherein the medical questions presented 
concern matters which a jury can be cred- 
ited with knowing by reason of common 



knowledge or wherein the possibility of ac- 
tionable medical negligence appears so 
clearly from the record that the 
plaintiff-patient need not produce expert 
medical testimony concerning the applica- 
ble standard of care to avoid summary judg- 
ment for a defendant in a medical malprac- 
tice action who has produced expert medical 
testimony as to his own lack of negligence. 
Cherokee County Hosp. Auth. v. Beaver, 179 
Ga. App. 200, 345 S.E.2d 904 (1986). 

The trial court erred in ruling that evi- 
dence merely that plaintiff experienced pain 
and an unexplained weakness in her leg at 
the time she received an injection was suffi- 
cient to warrant application of the narrow 
"pronounced results" exception. Cherokee 
County Hosp. Auth. v. Beaver, 179 Ga. App. 
200, 345S.E.2d904 (1986). 

Nonexpert testimony allowed as to readily 
apparent medical conditions. — Results of 
diagnosis and treatment, if so pronounced as 
to become apparent, as where a leg or limb 
which has been broken is shorter than the 
other after diagnosis and treatment, may be 
testified to by anyone. Pilgrim v. Landham, 
63 Ga. App. 451, 11 S.E.2d 420 (1940). 

Conflicting evidence on standard of care. 
— Where conflicting evidence was pre- 
sented as to whether psychiatrist complied 
with applicable standards of care, the trial 
court did not err in denying patient's mo- 
tion for new trial based on sufficiency of 
evidence supporting her claim for medical 
malpractice. Harris v. Leader, 231 Ga. App. 
709, 499 S.E.2d 374 (1998). 

Conflicting testimony insufficient to sup- 
port malpractice action where both views are 
customary and accepted. — Testimony show- 
ing a mere difference in views or individual 
practices among doctors, however, is insuffi- 
cient to support a malpractice action where 
it is shown that each view or practice is 
acceptable and customary. Hayes v. Brown, 
108 Ga. App. 360, 133 S.E.2d 102 (1963); 
Robertson v. Emory Univ. Hosp., 611 F.2d 
604 (5th Cir. 1980). 

Result of medical treatment is not consid- 
eration in the determination of whether it 
was performed negligendy. Blount v. Moore, 
159 Ga. App. 80, 282 S.E.2d 720 (1981). 

Fact that treatment resulted unfavorably 
does not raise presumption of want of 
proper care, skill, or diligence. Blount v. 
Moore, 159 Ga. App. 80, 282 S.E.2d 720 
(1981). 



131 



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Pleading and Practice (Cont'd) 

Admission of error by defendant. — An 

admission by a surgeon that he made a 
mistake during surgery would not raise a 
question of negligence for the jury in the 
absence of positive evidence of the usual and 
customary practices and procedures fol- 
lowed by the medical profession generally. 
Williams v. Ricks, 152 Ga. App. 555, 263 
S.E.2d457 (1979). 

Photograph of wound as evidence. — In 
an action for malpractice, under this section, 
a photograph of the wound alleged to have 
been caused by the malpractice is admissible 
in evidence to show the extent of the injury. 
Pace v. Cochran, 144 Ga. 261, 86 S.E. 934 
(1915). 

Plaintiff must produce expert testimony 
where defendant has done so. — In those 
cases where the plaintiff must produce an 
expert's opinion in order to prevail at trial, 
when the defendant produces an expert's 
opinion in his favor on motion for summary 
judgment and the plaintiff fails to produce a 
contrary expert opinion in opposition to 
that motion, then there is no genuine issue 
to be tried by the jury and it is not error to 
grant summary judgment to the defendant. 
Pilgrim v. Landham, 63 Ga. App. 451, 11 
S.E.2d 420 (1940); Golden v. Payne, 152 Ga. 
App. 800, 264 S.E.2d 292 (1979), rev'd on 
other grounds, 245 Ga. 784, 267 S.E.2d 211 
(1980); Parker v. Knight, 245 Ga. 782, 267 
S.E.2d 222 (1980); Lawrence v. Gardner, 154 
Ga. App. 722, 270 S.E.2d 9 (1980). 

Summary judgment properly based on de- 
fendant's own expert allegations if plaintiff 
fails to produce expert testimony. — When a 
plaintiff must produce an expert's opinion 
that the defendant was negligent in order to 
avoid the grant of a directed verdict in favor 
of the defendant, that plaintiff must also 
produce said opinion in order to avoid the 
grant of summary judgment in favor of the 
defendant when the defendant moves for 
summary judgment solely on the basis of his 
own affidavit, submitted in his capacity as an 
expert, that he was not negligent. Payne v. 
Golden, 245 Ga. 784, 267 S.E.2d 211 (1980). 

Defendant not entided to summary judg- 
ment where his expert's testimony may also 
support plaintiff's claim. — Simply because 
the defendant is initially responsible for the 
production of certain witnesses, the defen- 



dant is not entitled to summary judgment 
when the experts relied upon by the defen- 
dant also offer expert testimony which a jury 
could find supports plaintiff's allegations of 
medical negligence. Lawrence v. Gardner, 
154 Ga. App. 722, 270 S.E.2d 9 (1980). 

Burden of proof. — In a suit for damages 
alleged to have been caused by the malprac- 
tice of a surgeon, the burden is on the 
plaintiff to show a want of due care, skill, or 
diligence as required by this section, and 
also that the injury resulted from the want of 
such care, skill, or diligence. Georgia N. Ry. 
v. Ingram, 114 Ga. 639, 40 S.E. 708 (1901). 

Under this section the burden is on the 
plaintiff to show failure to exercise due care 
and skill. Hawkins v. Greenberg, 159 Ga. 
App. 302, 283 S.E.2d 301 (1981), aff'd, 166 
Ga. App. 574, 304 S.E.2d 922 (1983). 

To satisfy the burden of proof in a mal- 
practice action brought by the patient it was 
not necessary for another physician to testify 
that the defendant-physician was guilty of 
malpractice or professional negligence. 
Stephen W. Brown Radiology Assocs. v. 
Gowers, 157 Ga. App. 770, 278 S.E.2d 653 
(1981). 

Whether the requisite degree of care and 
skill has been exercised is question of fact 
for determination by jury. Radcliffe v. 
Maddox, 45 Ga. App. 676, 165 S.E. 841 
(1932); Robinson v. Campbell, 95 Ga. App. 
240, 97 S.E.2d 544 ( 1957) ; Gaines v. Wolcott, 
119 Ga. App. 313, 167 S.E.2d 366 (1969); 
Rogers v. Black, 121 Ga. App. 299, 173 S.E.2d 
431 (1970). 

Questions of negligence, diligence, con- 
tributory negligence, proximate cause, and 
the exercise of ordinary care for one's pro- 
tection, ordinarily are to be decided by a 
jury. Stephen W. Brown Radiology Assocs. v. 
Gowers, 157 Ga. App. 770, 278 S.E.2d 653 
(1981). 

Neither court nor jury may substitute its 
own standard for that established by expert 
testimony. — The court and the jury must 
have a standard measure which they are to 
use in measuring the acts of the doctor in 
determining whether he exercised a reason- 
able degree of care and skill, and are not 
permitted to set up and use any arbitrary or 
artificial standard of measurement that a 
jury may wish to apply. Pilgrim v. Landham, 
63 Ga. App. 451, 1 1 S.E.2d 420 (1940); Hayes 
v. Brown, 108 Ga. App. 360, 133 S.E.2d 102 
(1963). 



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Jury may be limited to expert testimony in 

determining negligence. — The jury, in de- 
termining the question of negligence in an 
action brought under this section, may be 
limited to die testimony of physicians and 
surgeons when determining this question 
when other facts and circumstances are ab- 
sent. Fincher v. Davis, 27 Ga. App. 494, 108 
S.E. 905 (1921). 

The location of the external site of the 
injection was merely a question of fact, not a 
"medical question" such as required expert 
medical testimony. Cherokee County Hosp. 
Auth. v. Beaver, 179 Ga. App. 200, 345 S.E.2d 
904 (1986). 



It is not error to charge the substance of 
§ 43-34-26 and this section in connection 
with an action against a hospital adminisua- 
tor who is alleged to have mixed and admin- 
istered drugs for the relief of his discomfort 
to a patient at the hospital as a result of 
which the patient suffered a bromide poi- 
soning. Fulton Hosp. v. McDonald, 106 Ga. 
App. 783, 128 S.E.2d 539 (1962). 

Use of phrase "acceptable customary 
medical approach" in charging the jury on 
the proper standard of negligence did not 
impermissibly allow a "custom" defense. 
Davis v. Coastal Emergency Servs., Inc., 868 
F.2d 1223 (11th Cir. 1989). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 61 Am. Jur. 2d, Physicians, 
Surgeons, and Other Healers, § 200 et seq. 

C.J.S. — 70 C.J.S., Physicians and Sur- 
geons, § 62 et seq. 

ALR. — Liability of physician for permit- 
ting exposure to infectious or contagious 
disease, 13 ALR 1465; 5 ALR 926. 

Liability of private noncharitable hospital 
or sanitarium for improper care of treat- 
ment of patient, 39 ALR 1431; 124 ALR 186. 

Liability for medical or surgical services 
rendered inmates of public institutions, 44 
ALR 1285. 

Liability to patient for results of medical 
or surgical treatment by one not licensed as 
required by law, 44 ALR 1418; 57 ALR 978. 

Liability for committing, or aiding com- 
mitment, to contagious disease hospital of 
one not suffering from contagious disease, 
54 ALR 656. 

Physicians and surgeons: standard of skill 
and care required of specialist, 59 ALR 1071. 

When statute of limitations commences to 
run against actions against physicians, sur- 
geons, or dentists for malpractice, 74 ALR 
1317; 80 ALR2d 368; 70 ALR3d 7. 

Grounds for revocation of valid license of 
physician, surgeon, or dentist, 82 ALR 1184. 

Liability as for malpractice as affected by 
failure to take or advise the taking of an 
X-ray picture after operation, or to resort to 
other means of determining advisability of a 
supplementary operation or special treat- 
ment, 115 ALR 298. 

Electrical treatment as practice of medi- 
cine or surgery within statute, 115 ALR 957. 

Necessary allegations in a declaration or 



complaint in action against physician or 
surgeon based on wrong diagnosis, 134 ALR 
683. 

Necessity of expert evidence to support an 
action for malpractice against a physician or 
surgeon, 141 ALR 5; 81 ALR2d 597. 

Physicians and surgeons: presumption or 
inference of negligence in malpractice cases; 
res ipsa loquitur, 162 ALR 1265; 174 ALR 
960; 82 ALR2d 1262. 

Proximate cause in malpractice cases, 13 
ALR2d 11. 

Malpractice: diagnosis and treatment of 
brain injuries, diseases, or conditions, 29 
ALR2d 501. 

Hospital's liability for injury or death in 
obstetrical cases, 37 ALR2d 1284. 

Liability for injury by X-ray, 41 ALR2d 329. 

Contributory negligence or assumption of 
risk as defense in action against physician or 
surgeon for malpractice, 50 ALR2d 1043. 

Medical malpractice action as abating 
upon death of either party, 50 ALR2d 1445. 

Nurse's liability for her own negligence or 
malpractice, 51 ALR2d 970. 

Malpractice: treatment of fractures or dis- 
locations, 54 ALR2d 200. 

Malpractice: diagnosis of fractures or dis- 
locations, 54 ALR2d 273. 

Malpractice in the diagnosis or treatment 
of cancer, 55 ALR2d 461; 79 ALR2d 890. 

Liability of physician or surgeon for ex- 
tending operation or treatment beyond that 
expressly authorized, 56 ALR2d 695. 

Liability of physician for lack of diligence 
in attending patient, 57 ALR2d 379. 

Liability of physician who abandons case, 
57 ALR2d 432. 



133 



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51-1-27 



Malpractice in nose and throat treatment 
and surgery, 58 ALR2d 216. 

Malpractice in administering medicine to 
which patient is unusually susceptible or 
allergic, 64 ALR2d 1281. 

Ophthalmological malpractice, 30 
ALR5th 571. 

Hospital's liability for injury to patient 
from heat lamp or pad or hot-water bottle, 
72 ALR2d 408. 

Malpractice: propriety and effect of in- 
struction or argument directing attention to 
injury to defendant's professional reputa- 
tion or standing, 74 ALR2d 662. 

Malpractice in diagnosis or treatment of 
tuberculosis, 75 ALR2d 814. 

Malpractice in treatment and surgery of 
the ear, 76 ALR2d 783. 

Malpractice: physician's duty to inform 
patient of nature and hazards of disease or 
treatment, 79 ALR2d 1028. 

Statute of limitations applicable to mal- 
practice action against physician, surgeon, 
dentist, or similar practitioner, 80 ALR2d 
320; 70 ALR4th 535. 

When statute of limitations commences to 
run against malpractice action against physi- 
cian, surgeon, dentist, or similar practitio- 
ner, 80 ALR2d 368; 70 ALR3d 7. 

Liability of chiropodist for malpracdce, 80 
ALR2d 1278. 

Physicians and surgeons: res ipsa loquitur, 
or presumption or inference of negligence, 
in malpractice cases, 82 ALR2d 1262. 

Liability of dentist to patient, 83 ALR2d 7; 
11 ALR4th 748. 

Liability of one physician or surgeon for 
malpracdce of another, 85 ALR2d 889. 

Competency of physician or surgeon of 
school of practice other than that to which 
defendant belongs to testify in malpractice 
case, 85 ALR2d 1022. 

Liability of physician for injury to 
esophagus or other internal organs occur- 
ring in course of gastroscopic examination, 
88 ALR2d 297. 

Malpractice in diagnosis and treatment of 
male urinary tract and related organs, 48 
ALR5th 575. 

Liability of doctor or dentist using force to 
restrain or discipline patient, 89 ALR2d 983. 

Malpractice in appendicitis treatment and 
surgery, 94 ALR2d 1006. 

Hospital's liability for exposing patient to 
extraneous infection or contagion, 96 
ALR2d 1205. 



Malpractice in connection with care and 
treatment of burn patients, 97 ALR2d 473. 

Malpractice liability with respect to diag- 
nosis and treatment of mental disease, 99 
ALR2d 599; 94 ALR3d 317; 8 ALR4th 464. 

Physician's or surgeon's liability for injury 
to mother in pregnancy and childbirth cases, 
99 ALR2d 1336; 76 ALR4th 1112; 1 ALR5th 
269; 2 ALR5th 769; 3 ALR5th 146; 4 ALR5th 
148; 4 ALR5th 210; 6 ALR5th 534; 7 ALR5th 
1. 

Liability of physician or surgeon for injury 
to child in pregnancy and childbirth cases, 
99 ALR2d 1398. 

Hospital's liability for personal injury or 
death of doctor, nurse, or attendant, 1 
ALR3d 1036. 

Physician's or surgeon's malpractice in 
connection with care and treatment of he- 
mophiliac or diagnosis of hemophilia, 1 
ALR3d 1107. 

Physician's or surgeon's malpractice in 
connection with diagnosis or treatment of 
rectal or anal disease, 5 ALR3d 916. 

Malpractice in connection with intrave- 
nous or other forced or involuntary feeding 
of patient, 6 ALR3d 668. 

Validity and construction of contract ex- 
empting hospital or doctor from liability for 
negligence to patient, 6 ALR3d 704. 

Applicability, in action against nurse in 
her professional capacity, of statute of limi- 
tations applicable to malpracdce, 8 ALR3d 
1336. 

Hospital's liability for negligence in con- 
nection with preparation, storage, or dis- 
pensing of drug or medicine, 9 AJLR3d 579. 

Res ipsa loquitur in action against hospital 
for injury to patient, 9 ALR3d 1315; 49 
ALR4th 63. 

Malpractice: liability of physician, sur- 
geon, anesthetist, or dentist for injury result- 
ing from foreign object left in padent, 10 
ALR3d 9. 

Physician's duties and liabilities to person 
examined pursuant to physician's contract 
with such person's prospective or actual em- 
ployer or insurer, 10 ALR3d 1071. 

Malpractice: liability in connection with 
insertion of prosthetic or other corrective 
devices in patient's body, 14 ALR3d 967. 

Hospital's liability to patient for injury 
sustained from defective equipment fur- 
nished by hospital for use in diagnosis or 
treatment of patient, 14 ALR3d 1254. 



134 



51-1-27 



GENERAL PROVISIONS 



51-1-27 



Scope of defendant's duty of pretrial dis- 
covery in medical malpractice action, 15 
ALR3d 1446. 

Employer's liability to employee for mal- 
practice of physician supplied by employer, 
16 ALR3d 564. 

Malpractice: liability of physician or hospi- 
tal where patient suffers heart attack or the 
like while undergoing unrelated medical 
procedure, 17 ALR3d 796. 

Malpractice in diagnosis and treatment of 
diseases or conditions of the heart or vascu- 
lar system, 19 ALR3d 825. 

Malpractice: doctor's liability for mistak- 
enly administering drug, 23 ALR3d 1334. 

Hospital's liability for injuries sustained by 
patient as a result of restraints imposed on 
movement, 25 ALR3d 1450. 

Medical malpractice, and measure and 
element damages, in connection with steril- 
ization or birth control procedures, 27 
ALR3d 906. 

Allowance of punitive damages in medical 
malpractice action, 35 ALR5th 145. 

Right to maintain malpractice suit against 
injured employee's attending physician not- 
withstanding receipt of workmen's compen- 
sation award, 28 ALR3d 1066. 

Malpractice in diagnosis and treatment of 
tetanus, 28 ALR3d 1364. 

Malpractice in connection with diagnosis 
and treatment of epilepsy, 30 ALR3d 988. 

Hospital's liability for injury or death to 
patient resulting from or connected with 
administration of anesthetic, 31 ALR3d 
1114. 

Malpractice: admissibility of evidence that 
defendant physician has previously per- 
formed unnecessary operations, 33 ALR3d 
1056. 

Malpractice: physician's failure to advise 
patient to consult specialist or one qualified 
in a method of treatment which physician is 
not qualified to give, 35 ALR3d 349. 

Liability of hospital for refusal to admit or 
treat patient, 35 ALR3d 841. 

Malpractice: attending physician's liability 
for injury caused by equipment furnished by 
hospital, 35 ALR3d 1068. 

Right of action for injury to or death of 
woman who consented to abortion, 36 
ALR3d 630. 

Liability for negligence in diagnosing or 
treating aspirin poisoning, 36 ALR3d 1358. 

Malpractice: surgeon's liability for inad- 



vertently injuring organ other than that in- 
tended to be operated on, 37 ALR3d 464. 

Release of one responsible for injury as 
affecting liability of physician or surgeon for 
negligent treatment of injury, 39 ALR3d 260. 

Duty of physician or nurse to assist patient 
while dressing or undressing, 41 ALR3d 
1351. 

Medical malpractice in connection with 
diagnosis, care, or treatment of diabetes, 43 
ALR5th 87. 

Recovery against physician on basis of 
breach of contract to achieve particular re- 
sult or cure, 43 ALR3d 1221. 

Medical malpractice: liability for injury 
allegedly resulting from negligence in mak- 
ing hypodermic injection, 45 ALR3d 731. 

Malpractice: physician's liability for injury 
or death resulting from side effects of drugs 
intentionally administered to or prescribed 
for patient, 47 ALR5th 433. 

Malpractice: failure of physician to notify 
patient of unfavorable diagnosis or test, 49 
ALR3d 501. 

Hospital's liability to patient for injury 
allegedly sustained from absence of particu- 
lar equipment intended for use in diagnosis 
or treatment of patient, 50 ALR3d 1141. 

Liability of optometrist or optician for 
malpractice, 51 ALR3d 1273. 

Necessity and sufficiency of expert evi- 
dence to establish existence and extent of 
physician's duty to inform patient of risks of 
proposed treatment, 52 ALR3d 1084. 

Liability of hospital or medical practitio- 
ner under doctrine of strict liability in tort, 
or breach of warranty, for harm caused by 
drug, medical instrument, or similar device 
used in treating patient, 54 ALR3d 258; 65 
ALR5th 357. 

Liability of physician or hospital in the 
performance of cosmetic surgery upon the 
face, 54 ALR3d 1255. 

Chiropractor's liability for failure to refer 
patient to medical practitioner, 58 ALR3d 
590. 

Druggist's civil liability for suicide con- 
summated with drugs furnished by him, 58 
ALR3d 828. 

Duty of physician or surgeon to warn or 
instruct nurse or attendant, 63 ALR3d 1020. 

Malpractice: physician's duty to inform 
patient of nature and hazards of radiation or 
x-ray treatments under the doctrine of in- 
formed consent, 69 ALR3d 1223. 



135 



51-1-27 



TORTS 



51-1-27 



When statute of limitations commences to 
run against malpractice action based on 
leaving foreign substance in patient's body, 
70 ALR3d 7. 

Medical malpractice: amendment pur- 
porting to change the nature of the action or 
theory of recovery, made after statute of 
limitations has run, as relating back to filing 
of original complaint, 70 ALR3d 82. 

Acupuncture as illegal practice of medi- 
cine, 72 ALR3d 1257. 

Discovery, in medical malpractice action, 
of names of other patients to whom defen- 
dant has given treatment similar to that 
allegedly injuring plaintiff, 74 ALR3d 1055. 

Malpractice in connection with diagnosis 
of cancer, 79 ALR3d 915. 

Tort liability of physician or hospital in 
connection with organ or tissue transplant 
procedures, 76 ALR3d 890. 

Tort liability for wrongfully causing one to 
be born, 83 ALR3d 15; 74 ALR4th 798. 

Patient tort liability of rest, convalescent, 
or nursing homes, 83 ALR3d 871. 

Modern status of views as to general mea- 
sure of physician's duty to inform patient of 
risks of proposed treatment, 88 ALR3d 1008. 

Malpractice: questions of consent in con- 
nection with treatment of genital or urinary 
organs, 89 ALR3d 32. 

Malpractice: liability of anesthetist for in- 
juries from spinal anesthetics, 90 ALR3d 
775. 

When statute of limitations begins to run 
against malpractice action in connection 
with sterilization or birth control proce- 
dures, 93 ALR3d 218. 

Malpractice in connection with 
electroshock treatment, 94 ALR3d 317. 

Medical malpractice: instruction as to ex- 
ercise or use of injured member, 99 ALR3d 
901. 

Modern status of "locality rule" in mal- 
practice action against physician who is not a 
specialist, 99 ALR3d 1133. 

Medical malpractice: patient's failure to 
return, as directed, for examination or treat- 
ment as contributory negligence, 100 
ALR3d 723. 

Application of rule of strict liability in tort 
to person or entity rendering medical ser- 
vices, 100ALR3d 1205. 

Medical malpractice: administering or 
prescribing drugs for weight control, 1 
ALR4th 236. 



Civil liability for physical measures under- 
taken in connection with treatment of men- 
tally disordered patient, 8 ALR4th 464. 

Hospital's liability for patient's injury or 
death as result of fall from bed, 9 ALR4th 
149. 

Medical malpractice: administering or 
prescribing birth control pills or devices, 9 
ALR4th 372. 

Propriety, in medical malpractice case, of 
admitting testimony regarding physician's 
usual custom or habit in order to establish 
nonliability, 10 ALR4th 1243. 

Duty of medical practitioner to warn pa- 
tient of subsequently discovered danger 
from treatment previously given, 12 ALR4th 
41. 

Hospital's liability for negligence in failing 
to review or supervise treatment given by 
doctor, or to require consultation, 12 
ALR4th 57. 

What constitutes physician-patient rela- 
tionship for malpractice purposes, 17 
ALR4th 132. 

Standard of care owed to patient by med- 
ical specialist as determined by local, "like 
community," state, national, or other stan- 
dards, 18 ALR4th 603. 

Liability of hospital, physician, or other 
individual medical practitioner for injury or 
death resulting from blood transfusion, 20 
ALR4th 136. 

Medical malpractice: instrument breaking 
in course of surgery or treatment, 20 
ALR4th 1179. 

Malpractice liability based on prior 
treatment of mental disorder alleged to re- 
late to patient's conviction of crime, 28 
ALR4th 712. 

Patient's failure to reveal medical history 
to physician as contributory negligence or 
assumption of risk in defense of malpractice 
action, 33 ALR4th 790. 

Recovery for emotional distress resulting 
from statement of medical practitioner or 
official, allegedly constituting outrageous 
conduct, 34 ALR4th 688. 

Validity of state statute providing for peri- 
odic payment of future damages in medical 
malpractice action, 41 ALR4th 275. 

Medical malpractice: liability based on 
misrepresentation of the nature and hazards 
of treatment, 42 ALR4th 543. 

Physician's liability to third person for 
prescribing drug to known drug addict, 42 
ALR4th 586. 



136 



51-1-27 



GENERAL PROVISIONS 



51-1-27 



Liability of physician, for injury to or 
death of third party, due to failure to disclose 
driving-related impediment, 43 ALR4th 153. 

Liability of hospital or clinic for sexual 
relationships with patients by staff physi- 
cians, psychologists, and other healers, 45 
ALR4th 289. 

Physician's tort liability for unauthorized 
disclosure of confidential information about 
patient, 48 ALR4th 668. 

Future disease or condition, or anxiety 
relating thereto, as element of recovery, 50 
ALR4th 13. 

Liability of hospital or sanitarium for neg- 
ligence of physician or surgeon, 51 ALR4th 
235. 

Medical malpractice: "loss of chance" cau- 
sality, 54 ALR4th 10. 

Tortious maintenance or removal of life 
supports, 58 ALR4th 222. 

Medical malpractice: hospital's liability for 
injury allegedly caused by failure to have 
properly qualified staff, 62 ALR4th 692. 

Liability for injury or death allegedly 
caused by activities of hospital "rescue 
team", 64 ALR4th 1200. 

Recovery in death action for failure to 
diagnose incurable disease which caused 
death, 64 ALR4th 1232. 

Medical practitioner's liability for treat- 
ment given child without parent's consent, 
67ALR4th511. 

Applicability of res ipsa loquitur in case of 
multiple medical defendants — modern sta- 
tus, 67 ALR4th 544. 

Medical malpractice in performance of 
legal abortion, 69 ALR4th 875. 

Medical malpractice: presumption or in- 
ference from failure of hospital or doctor to 
produce relevant medical records, 69 
ALR4th 906. 

Veterinarian's liability for malpractice, 71 
ALR4th811. 

Propriety and prejudicial effect of trial 
counsel's reference or suggestion in medical 
malpractice case that defendant is insured, 
71 ALR4th 1025. 

Liability of osteopath for medical malprac- 
tice, 73 ALR4th 24. 

"Dual capacity doctrine" as basis for em- 
ployee's recovery for medical malpractice 
from company medical personnel, 73 
ALR4th 115. 

Liability for medical malpractice in con- 
nection with performance of circumcision, 
75 ALR4th 710. 



Liability of hospital, physician, or other 
medical personnel for death or injury to 
mother or child caused by improper proce- 
dures during caesarean delivery, 76 ALR4th 
1112. 

Liability for dental malpractice in provi- 
sion or fitting of dentures, 77 ALR4th 222. 

Liability of chiropractors and other 
drugless practitioners for medical malprac- 
tice, 77 ALR4th 273. 

Medical malpractice: measure and ele- 
ments of damages in actions based on loss of 
chance, 81 ALR4th 485. 

Liability of orthodontist for malpractice, 
81 ALR4th 632. 

Medical malpractice: drug manufacturer's 
package insert recommendations as evi- 
dence of standard of care, 82 ALR4th 166. 

Malpractice involving hysterectomies and 
oophorectomies, 86 ALR4th 18. 

Gynecological malpractice not involving 
hysterectomies or oophorectomies, 86 
ALR4th 125. 

Recoverability of cost of raising normal, 
healthy child born as result of physician's 
negligence or breach of contract or war- 
ranty, 89 ALR4th 632. 

Malpractice: physician's duty, under in- 
formed consent doctrine, to obtain patient's 
consent to treatment in pregnancy or child- 
birth cases, 89 ALR4th 799. 

What patient claims against doctor, hospi- 
tal, or similar health care provider are not 
subject to statutes specifically governing ac- 
tions and damages for medical malpractice, 
89 ALR4th 887. 

Application of "firemen's rule" to bar 
recovery by emergency medical personnel 
injured in responding to, or at scene of, 
emergency, 89 ALR4th 1079. 

Liability of hospital, physician, or other 
medical personnel for death or injury to 
mother or child caused by improper admin- 
istration of, or failure to administer, anesthe- 
sia or tranquilizers, or similar drugs, during 
labor and delivery, 1 ALR5th 269. 

Liability for incorrectly diagnosing exist- 
ence or nature of pregnancy, 2 ALR5th 769. 

Liability of hospital, physician, or other 
medical personnel for death or injury to 
child caused by improper postdelivery diag- 
nosis, care, and representations, 2 ALR5th 
811. 

Liability of physician, nurse, or hospital 
for failure to contact physician or to keep 



137 



51-1-28 



TORTS 



51-1-28 



physician sufficiently informed concerning 
status of mother during pregnancy, labor, 
and childbirth, 3 ALR5th 123. 

Liability of hospital, physician, or other 
medical personnel for death or injury to 
mother or child caused by inadequate atten- 
dance or monitoring of patient during and 
after pregnancy, labor, and delivery, 3 
ALR5th 146. 

Liability of doctor or other health practi- 
tioner to third party contracting contagious 
disease from doctor's patient, 3 ALR5th 370. 

Liability of hospital, physician, or other 
medical personnel for death or injury to 
mother or child caused by improper choice 
between, or timing of, vaginal or cesarean 
delivery, 4 ALR5th 148. 

Liability of hospital, physician, or other 
medical personnel for death or injury to 
mother or child caused by improper proce- 
dures during vaginal delivery, 4 ALR5th 210. 

Liability of hospital, physician, or other 
medical personnel for death or injury to 
mother or child caused by improper treat- 
ment during labor, 6 ALR5th 490. 

Liability of hospital, physician, or other 
medical personnel for death or injury to 
mother caused by improper postdelivery di- 
agnosis, care, and representations, 6 ALR5th 
534. 

Liability of hospital, physician, or other 
medical personnel for death or injury to 
mother or child caused by improper diagno- 
sis and treatment of mother relating to and 
during pregnancy, 7 ALR5th 1 . 

Joint and several liability of physicians 
whose independent negligence in treatment 
of patient causes indivisible injury, 9 ALR5th 
746. 

Medical malpractice: who are "health care 
providers," or the like, whose actions fall 
within statutes specifically governing actions 



and damages for medical malpractice, 12 
ALR5th 1. 

Validity, construction, and application of 
state statutory provisions limiting amount of 
recovery in medical malpractice claims, 26 
ALR5th 245. 

Ophthalmological malpractice, 30 
ALR5th 571. 

Allowance of punitive damages in medical 
malpractice action, 35 ALR5th 145. 

Medical malpractice in connection with 
diagnosis, care, or treatment of diabetes, 43 
ALR5th 87. 

Propriety of, and liability related to, issu- 
ance or enforcement of do not resuscitate 
orders, 46 ALR5th 793. 

Malpractice: physician's liability for injury 
or death resulting from side effects of drugs 
intentionally administered to or prescribed 
for patient, 47 ALR5th 433. 

Malpractice in diagnosis and treatment of 
male urinary tract and related organs, 48 
ALR5th 575. 

Liability of health maintenance organiza- 
tions (HMOs) for negligence of member 
physicians, 51 ALR5th 271. 

Malpractice in diagnosis or treatment of 
meningitis, 51 ALR5th 301. 

Liability for donee's contraction of Ac- 
quired Immune Deficiency Syndrome 
(AIDS) from blood transfusion, 64 ALR5th 
333. 

Discovery, in medical malpractice action, 
of names and medical records of other pa- 
tients to whom defendant has given treat- 
ment similar to that allegedly injuring plain- 
tiff, 66 ALR5th 591. 

Physical injury requirement for emotional 
distress claim based on false positive conclu- 
sion on medical test diagnosing disease, 69 
ALR5th411. 



51-1-28. Transfusions, transplants, and transfers of human blood, tissue, 
organs; negligence prerequisite to recovery for damages. 

(a) The injection, transfusion, or other transfer of human whole blood, 
blood plasma, blood products, or blood derivatives and the transplanting or 
other transfer of any tissue, bones, or organs into or onto the human body 
shall not be considered a sale of any commodity, goods, property, or 
product subject to sale or barter but, instead, shall be considered as the 
rendition of medical services. No implied warranties of any kind or 
description shall be applicable thereto and no person, firm, or corporation 



138 



51-1-29 



GENERAL PROVISIONS 



51-1-29 



participating in such services shall be liable for damages unless negligence 
is proven. 

(b) Code Section 51-1-27 shall not be affected by subsection (a) of this 
Code section. (Code 1933, § 105-1105, enacted by Ga. L. 1971, p. 457, § 1.) 



Cross references. — Inapplicability of im- 
plied warranties to injection, transfusion, or 
other transfer of blood, blood plasma, etc., 
or transplanting of tissue, bones, or organs, 
§ 11-2-316. 

Law reviews. — For article, "Federal Au- 



tomotive Safety Standards and Georgia Prod- 
ucts Liability Law: Conflict or Coexistence?," 
see26Ga. St. BJ. 107 (1990). 

For comment on tort liability of hospitals 
based on use of defective blood in blood 
transfusions, see 5 Ga. L. Rev. 371 (1971). 



JUDICIAL DECISIONS 



This section is not contrary to the privi- 
leges and immunities clause of U.S. Const., 
Amend. 14. McAllister v. American Nat'l Red 
Cross, 240 Ga. 246, 240 S.E.2d 247 (1977). 

Section not special legislation. — The 
reasoning behind this section is free from 
the arbitrariness which would render the 
exemption of blood suppliers special legisla- 
tion contrary to the Georgia Constitution. 
McAllister v. American Nat'l Red Cross, 240 
Ga. 246, 240 S.E.2d 247 (1977). 

Clear import of this section is to include 
not only hospitals, but entities like the Amer- 
ican National Red Cross engaged in provid- 
ing blood for human use. McAllister v. Amer- 
ican Nat'l Red Cross, 240 Ga. 246, 240 S.E.2d 
247 (1977). 

Hospitals supplying blood to patients do 
so as part of rendering medical "services," 
rather than as a "sale" of blood, and thus 



only negligence and not strict products lia- 
bility is available to the injured patient. 
McAllister v. American Nat'l Red Cross, 240 
Ga. 246, 240 S.E.2d 247 (1977). 

This section bars claim under § 51-1-11 
for defective blood. Timms v. Verson Allsteel 
Press Co., 520 F. Supp. 1147 (N.D. Ga. 1981). 

AIDS claim against commercial laboratory 
barred. — Georgia's "blood shield" statute 
applied to a commercial laboratory, so as to 
bar a hemophiliac's strict liability and breach 
of warranty claims against the laboratory for 
a defective blood-clotting agent which alleg- 
edly exposed him to the virus associated with 
acquired immune deficiency syndrome 
(AIDS). Jones v. Miles Labs., Inc., 705 F. 
Supp. 561 (N.D. Ga. 1987), aff'd, 887 F.2d 
1576 (11th Cir. 1989). 

Cited in Parr v. Paimvra Park Hosp., 139 
Ga. App. 457, 228 S.E.2d 596 (1976). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 63 AM. Jur. 2d, Products 
Liability, § 899. 63A AM. Jur. 2d, Products 
Liability, § 1310. 

C.J.S. — 72 C.J.S. Supp., Product Liability, 
§§ 5, 23, 54. 

ALR. — Hospital's liability for exposing 
patient to extraneous infection or conta- 
gion, 96 ALR2d 1205. 

Tort liability or physician or hospital in 
connection with organ or tissue transplant 
procedures, 76 ALR3d 890. 



Liability of hospital, physician, or other 
individual medical practitioner for injury or 
death resulting from blood transfusion, 20 
ALR4th 136. 

Liability of blood supplier or donor for 
injury or death resulting from blood trans- 
fusion, 24 ALR4th 508. 

Liability for donee's contraction of Ac- 
quired Immune Deficiency Syndrome 
(AIDS) from blood transfusion, 64 ALR5th 
333. 



51-1-29. Liability of persons rendering emergency care. 

Any person, including any person licensed to practice medicine and 
surgery pursuant to Article 2 of Chapter 34 of Tide 43 and including any 



139 



51-1-29 



TORTS 



51-1-29 



person licensed to render services ancillary thereto, who in good faith 
renders emergency care at the scene of an accident or emergency to the 
victim or victims thereof without making any charge therefor shall not be 
liable for any civil damages as a result of any act or omission by such person 
in rendering emergency care or as a result of any act or failure to act to 
provide or arrange for further medical treatment or care for the injured 
person. (Ga. L. 1962, p. 534, § 1.) 



Cross references. — Emergency assistance 
to persons choking, § 26-2-374. Implied con- 
sent to surgical or medical treatment in 
emergency situations, § 31-9-3. Liability of 
persons licensed to furnish ambulance ser- 
vice who render emergency care to victims of 
accident or emergency, § 31-11-8. Liability 
of law enforcement officers for actions taken 
while performing duties at scene of emer- 
gency, § 35-1-7. Limitation of liability for 
death or injury relating to operation of 
"911" emergency telephone system, 



§ 46-5-131. Limitation of liability for persons 
rendering assistance at scene of boating col- 
lision, accident, or other casualty, § 52-7-14. 

Law reviews. — For article, "The Good 
Samaritan Laws: A Reappraisal," see 16 J. 
Pub. L. 128 (1967). 

For note, "Good Samaritan Laws — Good 
or Bad?" see 15 Mercer L. Rev. 477 (1964). 

For comment, "Good Samaritan Laws — 
Legal Disarray: An Update," see 38 Mercer 
L. Rev. 1439 (1987). 



JUDICIAL DECISIONS 



Scope of section. — While medical prac- 
titioners are included in this section, it is 
manifest that "any person" who in good 
faith renders emergency care at the scene of 
an accident or emergency to the victims 
thereof "without making any charge there- 
for," although not a licensed medical prac- 
titioner, is exempt from civil liability as a 
"good Samaritan." Wallace v. Hall, 145 Ga. 
App. 610, 244 S.E.2d 129 (1978). 

Emergencies in which doctors are pro- 
tected, — Doctors who by chance are called 
upon to render emergency care are pro- 
tected by this section; however, occurrence 
of an "emergency" will not invoke the im- 
munity afforded by this section if it was the 
doctor's duty to respond to the emergency. 
Clayton v. Kelly, 183 Ga. App. 45, 357 S.E.2d 
865 (1987). 

Doctor present in hospital when emer- 
gency arises. — Physician is not deprived of 
immunity by the fact alone that he works at 
the hospital, or is present at the hospital, or 
is called to the hospital when the emergency 
arises. If there was no prior duty to respond 
and there was no prior doctor-patient rela- 
tionship, one is not created by the event of 
the emergency. Clayton v. Kelly, 183 Ga. App. 
45, 357S.E.2d865 (1987). 

Physician's skill does not create duty. — 
The fact that a physician is skilled in the 



subject matter in question or that the exi- 
gency lies within his expertise, does not 
create a duty where none existed before; in 
fact such persons are particularly encour- 
aged by the Good Samaritan statute to vol- 
unteer their aid. Clayton v. Kelly, 183 Ga. 
App. 45, 357 S.E.2d 865 (1987). 

Rule of sudden emergency. — The rule of 
sudden emergency is that one who in a 
sudden emergency acts according to his best 
judgment or, because of want of time in 
which to form judgment, acts in the most 
judicious manner, is not chargeable with 
negligence. Webb v. Perry, 158 Ga. App. 409, 
280S.E.2d423 (1981). 

Burden of proof is on the physician to 
establish a prima facie case in support of a 
Good Samaritan liability defense, and where 
genuine issues of material fact exist as to 
whether the physician was a volunteer not 
under some preexisting duty to render med- 
ical care, summary judgment is precluded. 
Henry v. Barfield, 186 Ga. App. 423, 367 
S.E.2d 289 (1988). 

Cited in Gordon v. Athens Convalescent 
Center, Inc., 146 Ga. App. 134, 245 S.E.2d 
484 (1978); Gragg v. Neurological Assocs., 
152 Ga. App. 586, 263 S.E.2d 496 (1979); 
Emory Univ. v. Porubiansky, 248 Ga. 391, 282 
S.E.2d 903 (1981); Gragg v. Spenser, 159 Ga. 
App. 525, 284 S.E.2d 40 (1981). 



140 



51-1-29.1 



GENERAL PROVISIONS 
OPINIONS OF THE ATTORNEY GENERAL 



51-1-29.1 



Certain persons rendering aid to accident 
victims protected by section. — This section 
appears to relieve one not at fault but in- 
volved in an automobile accident from lia- 
bility, because he is required under the 
provisions of § 40-6-270 to render aid and 
provide transportation to a hospital, even 
though he believes that he is not competent 
to undertake such responsibility. 1967 Op. 
Att'y Gen. No. 67-333. 

Certain persons required by law to render 
aid not volunteers within scope of section. — 
The Good Samaritan Law exempts volun- 
teers aiding victims from liability for their 



negligence as long as the assistance is ren- 
dered in good faith; where, however, the 
victim is employed by an industry, which 
must comply with 29 C.F.R. § 1910, requir- 
ing the employer to maintain certain first-aid 
facilities, the employer and persons em- 
ployed by him in a first-aid capacity are not 
volunteers, but are under a legal duty to 
assist; they are not protected by the Good 
Samaritan Law, and the employer and his 
first-aid employees are responsible to exer- 
cise reasonable care. 1972 Op. Att'y Gen. 
No. U72-62. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 51 Am. Jur. 2d, Licenses 
and Permits, §§ 70-85. 58 Am. Jur. 2d, Oc- 
cupations, Trades, and Professions, § 9. 61 
Am. Jur. 2d, Physicians, Surgeons, and Other 
Healers, §§ 122-130. 

CJ.S. — 53 C.J.S., Licenses, § 74 et seq. 
70 C.J.S., Physicians and Surgeons, § 34. 

ALR. — Liability for medical or surgical 
services rendered inmates of public institu- 
tions, 44 ALR 1285. 

Negligence of third person, other than 
physician or surgeon, in caring for injured 
person or in failing to follow instructions in 
that regard as affecting damages recoverable 



against person causing injury, 101 ALR 559. 

Hospital's liability as to diagnosis and care 
of patients brought to emergency ward, 72 
ALR2d 396. 

Construction and application of "Good 
Samaritan" statutes, 68 ALR4th 294. 

Rescue doctrine: liability of one who neg- 
ligently causes motor vehicle accident for 
injuries to person subsequendy attempting 
to rescue persons or property, 73 ALR4th 
737. 

Modern status of sudden emergency doc- 
trine, 10 ALR5th 680. 



51-1-29.1. Liability of voluntary health care provider and sponsoring orga- 
nization. 

(a) Without waiving or affecting and cumulative of any existing immu- 
nity from any source, unless it is established that injuries or death were 
caused by gross negligence or willful or wanton misconduct: 

(1) No health care provider licensed under Chapter 9, 11, 26, 30, 33, 
or 34 of Tide 43 who voluntarily and without the expectation or receipt 
of compensation provides professional services, within the scope of such 
health care provider's licensure, for and at the request of a hospital, 
public school, nonprofit organization, or an agency of the state or one of 
its political subdivisions or provides such professional services to a person 
at the request of such an organization, which organization does not 
expect or receive compensation with respect to such services from the 
recipient of such services. Nothing in this Code section shall be con- 



141 



51-1-29.2 torts 51-1-29.2 

strued to change the scope of practice of any health care provider 
granted immunity in this Code section; or 

(2) No licensed hospital, public school, or nonprofit organization 
which requests, sponsors, or participates in the providing of the services 
under the circumstances provided in paragraph (1) of this subsection 

shall be liable for damages or injuries alleged to have been sustained by the 
person nor for damages for the injury or death of the person when the 
injuries or death are alleged to have occurred by reason of an act or 
omission in the rendering of such services. 

(b) This Code section shall apply only to causes of action arising on or 
after July 1, 1987. (Code 1981, § 51-1-29.1, enacted by Ga. L. 1987, p. 887, 
§ 4; Ga. L. 1987, p. 986, § 2; Ga. L. 1998, p. 859, § 1; Ga. L. 1999, p. 81, 
§ 51.) 

The 1998 amendment, effective July 1, Code Commission notes. — The enact- 

1998, in the first sentence of paragraph (1) ment of this Code section by Ga. L. 1987, p. 
of subsection (a), inserted "9," and "33," 887, § 4, irreconcilably conflicted with and 
near the beginning and inserted ". Nothing was treated as superseded by Ga. L. 1987, p. 
in this Code section shall be construed to 986, § 2. See County of Butts v. Strahan, 151 
change the scope of practice of any health Ga. 417 (1921). 

care provider granted immunity herein" at Pursuant to Code Section 28-9-5, in 1999, 

the end. "Code section" was substituted for "Code 

The 1999 amendment, effective April 5, Section" at the end of paragraph (1) of 

1999, part of an Act to revise, modernize, subsection (a) 
and correct the Code, substituted "in this 

Code Section" for "herein" in paragraph 
(1) of subsection (a). 

JUDICIAL DECISIONS 

Cited in Walker v. Fulton-DeKalb Hosp. 492 S.E.2d 665 (1997); Washington v. Geor- 
Auth., 200 Ga. App. 750, 409 S.E.2d 529 gia Baptist Medical Ctr., 230 Ga. App. 654, 
(1991); Porquez v. Washington, 268 Ga. 649, 501 S.E.2d 1 (1998). 

RESEARCH REFERENCES 

C.J.S. — 65 C.J.S., Negligence, §§ 63, 90. 
65A C.J.S. Negligence, §§ 118, 116. 

51-1-29.2. Liability of persons acting to prevent, minimize, and repair 
injury and damage resulting from catastrophic acts of nature. 

Any natural person who voluntarily and without the expectation or 
receipt of compensation provides services during a time of emergency and 
in a place of emergency as declared by the Governor for the benefit of any 

142 



51-1-30 GENERAL PROVISIONS 51-1-30 

individual to prevent, minimize, and repair injury and damage to property 
resulting from catastrophic acts of nature, including fire, flood, earthquake, 
wind, storm, or wave action, shall not be liable to any individual receiving 
such assistance as a result of any act or omission in rendering such service 
if such person was acting in good faith and unless the damage or injury was 
caused by the willful or wanton negligence or misconduct of such person. 
(Code 1981, § 51-1-29.2, enacted by Ga. L. 1995, p. 954, § 1.) 

Cross references. — Sovereign immunity and political subdivision, § 38-3-35. 

granted those who allow premises to be used Law reviews. — For note on the 1995 

for emergency purposes, § 38-3-32. Immu- enactment of this section, see 12 Ga. St. U.L. 

nity granted those who provide equipment R e v. 368 (1995). 
in emergencies, § 38-3-33. Immunity of state 

51-1-30. Liability of officers and agents for acts performed while fighting 
fires or performing duties at the scene of emergencies. 

(a) As used in this Code section, the term "fire department" includes 
volunteer fire departments established pursuant to local act, ordinance, or 
resolution or established as nonprofit corporations pursuant to private 
subscription and any fire department established as a department, bureau, 
or agency of a municipality, county, fire district, or authority of this state. 

(b) The officers, members, agents, or employees of any fire department 
established by any county, municipality, fire district, or authority shall not be 
liable at law for any act or acts done while actually fighting a fire or 
performing duties at the scene of an emergency, except for willful 
negligence or malfeasance. 

(c) This Code section shall not affect the right of any party to recover 
damages for an act which occurred before July 1, 1980. (Code 1933, 
§ 3-1004.1, enacted by Ga. L. 1980, p. 1173, §§ 1, 2; Ga. L. 1982, p. 1150, 
§§ 1, 2; Ga. L. 1985, p. 149, § 51.) 

Cross references. — Immunity of coun- taken during emergencies, disasters, etc., 
ties, municipalities, etc., for damages result- § 38-3-35. Liability of persons rendering as- 
ing from inspections or other actions taken sistance at scene of boat collision, accident, 
or not taken pursuant to fire protection laws, or other casualty, § 52-7-14. 
§ 25-2-38.1. Powers of fire departments in Code Commission notes. — This Code 
emergencies generally, § 25-3-2. section, enacted by Ga. L. 1980, p. 1173, 
Firefighters, Ch. 4, T. 25. Liability of law §§ 1 and 2, was designated § 3-1004.1 of the 
enforcement officers for actions taken while Code of ^33 by t h e 1980 Act. However, Ga. 
performing duties at scene of emergency, L 1975^ p 136 3 § 3? previously enacted a 
§ 35-1-7. Liability of counties only as autho- sect ion with that same number for the Code 
rized by statute, § 36-1-4. Liability of munic- of 1933 See Code Section 9-3-34. 
ipal corporations for acts or omissions of Law reviews _ For comment) « Good 
officers generally, Ch. 33 T. 36. Immunity of Samaritan Laws _ Legal Disarray: An Up- 
state and political subdivisions and emer- d „ §ee 3g Mercer L Rey H39 (ig87) 
gency management workers for actions 



143 



51-1-30.1 torts 51-1-30.2 

RESEARCH REFERENCES 

Am.Jur. 2d. — 57 Am. Jur. 2d, Municipal, ALR. — Products liability: firefighting 

County, School, and State Tort Liability equipment, 19 ALR4th 326. 
§§ 482, 515, 516. 

C.J.S. — 63 C.J.S. Municipal Corporations 
§ 691. 

51-1-30.1. Exemption from tort liability of drivers and operators of fire 
apparatus in certain municipalities. 

(a) As used in this Code section, the term "fire apparatus'* means salvage 
and first-aid cars, chiefs' cars, hose wagons, pumpers, aerial trucks, water 
towers, service trucks, supply trucks, or other publicly owned and operated 
automotive equipment used in fire fighting. 

(b) A driver or operator of fire apparatus publicly owned and operated 
by any member of a fire department in municipalities having a population 
of more than 300,000 according to the United States decennial census of 
1940 or any future such census shall be exempted from any tort liability by 
reason of injuries sustained to the person or property of anyone where such 
damage or injury is caused by the driving of such apparatus in responding 
to a fire alarm or while returning to a fire station under emergency orders 
of a chief or assistant chief to put equipment back into service for another 
call. 

(c) Nothing in this Code section shall affect in any manner the liability 
of such municipalities owning such fire apparatus for the torts of its 
employees under the general laws of this state. (Ga. L. 1941, p. 442, § 1; 
Code 1981, § 51-1-30.1, enacted by Ga. L. 1982, p. 2107, § 52; Ga. L. 1985, 
p. 149, § 51.) 

Code Commission notes. — Pursuant to § 1, was redesignated as Code Section 
Code Section 28-9-5, in 1983, Code Section 51-1-30.2. 
51-1-30.1, as enacted by Ga. L. 1982, p. 2495, 

51-1-30.2. Immunity of teachers and school personnel from liability for 
communicating information concerning drug abuse. 

Teachers and other school personnel shall be immune from any civil 
liability for communicating information in good faith concerning drug 
abuse by any child to that child's parents, to law enforcement officials, or to 
health care providers. (Code 1981, § 51-1-30.1, enacted by Ga. L. 1982, p. 
2495, § 1; Code 1981, § 51-1-30.2, as redesignated by Ga. L. 1983, p. 3, 
§ 40.) 

Cross references. — Reporting of juvenile concerning alcohol and drug use 
drug use, § 19-7-6. Mandatory instruction § 20-2-144. 

144 



51-1-30.3 GENERAL PROVISIONS 51-1-30.3 

Code Commission notes. — Pursuant to § 1, was redesignated as Code Section 
Code Section 28-9-5, in 1983, Code Section 51-1-30.2. 
51-1-30.1, as enacted by Ga. L. 1982, p. 2495, 

51-1-30.3. Immunity from liability for persons providing certain services 
upon public or private school property and for public or private 
schools requesting such services. 

(a) Unless it is established that injuries or death were caused by gross 
negligence or willful or wanton misconduct: 

(1) No natural person who voluntarily and without the expectation or 
receipt of compensation provides services for and at the request and 
sanction of a public school or private school and who does not expect or 
receive compensation with respect to such services from the recipient of 
such services; or 

(2) No public school or private school which requests, sponsors, or 
participates in the providing of the services under the circumstances 
provided in paragraph (1) of this subsection 

shall be liable for damages or injuries alleged to have been sustained by 
another person or damages for the injury or death of the other person 
when the injuries or death are alleged to have occurred by reason of an act 
or omission occurring on school property in the rendering of such services 
if such services are provided upon school property or at a school sponsored 
function. 

(b) This Code section shall not apply to any incident or incidents arising 
out of the operation of a motor vehicle or motor vehicles. This Code section 
also shall not apply to any public or private school to the extent that any 
such public or private school has insurance in effect which covers any 
damages or injury or death described in paragraph (a) above. 

(c) This Code section shall not apply to persons who are performing 
tasks associated with their normal or ordinary course of business or their 
trade or profession. 

(d) This Code section shall apply only to causes of action arising on or 
after July 1, 1994. 

(e) Nothing in this Code section shall be construed to alter, affect, or 
repeal any other provision of law granting immunity from liability or to alter 
or affect any other immunity provision from whatever source and shall be 
cumulative of any existing immunity from any source. (Code 1981, 
§ 51-1-30.3, enacted by Ga. L. 1994, p. 1055, § 1.) 

Law reviews. — For note on the 1994 
enactment of this Code section, see 11 Ga. 
St. U.L. Rev. 267 (1994). 

145 



51-1-31 TORTS 51-1-31 

RESEARCH REFERENCES 

C.J.S. — 98A C.J.S., Schools and School 
Districts, § 452 et seq. 

51-1-31. Liability from donation of canned or perishable food to charitable 
or nonprofit organizations for use or distribution. 

(a) As used in this Code section, the term: 

(1) "Canned food" means any food which has been commercially 
processed and prepared for human consumption and which has been 
commercially packaged in such a manner as to remain nonperishable 
without refrigeration for a reasonable length of time. 

(2) * 'Donor" includes, but is not limited to, a farmer, processor, 
distributor, commercial food service operator, wholesaler, or retailer of 
food. 

(3) "Gleaner" means a person who harvests for use or distribution an 
agricultural crop that has been donated by the owner. 

(4) "Perishable food" means any food that may spoil or otherwise 
become unfit for human consumption because of its nature, type, or 
physical condition. "Perishable food" includes, but is not limited to, 
table-ready food, cooked foods, fresh or processed meats, poultry, 
seafood, dairy products, bakery products, eggs, fresh fruits or vegetables, 
and foods that have been noncommercially or commercially packaged or 
that have been frozen or otherwise require temperature control to 
remain nonperishable for a reasonable length of time. 

(b) A good faith donor or gleaner of any canned or perishable food 
apparendy fit for human consumption who donates such food to a bona 
fide charitable or nonprofit organization for use or distribution shall not be 
subject to criminal penalty or civil damages arising from the condition of 
the food, unless an injury is caused by the recklessness or intentional 
misconduct of the donor or gleaner. 

(c) A bona fide charitable or nonprofit organization which accepts any 
canned or perishable food apparendy fit for human consumption from a 
good faith donor or gleaner for use or distribution shall not be subject to 
criminal penalty or civil damages arising from the condition of the food, 
unless an injury is caused by the recklessness or intentional misconduct of 
the charitable or nonprofit organization. 

(d) The provisions of this Code section apply to the good faith donation 
of canned or perishable food not readily marketable due to appearance, 
freshness, grade, surplus, or other such considerations. 

(e) The provisions of this Code section shall not be construed to restrict 
the authority of any lawful agency otherwise to regulate or ban the use of 

146 



51-1-32 GENERAL PROVISIONS 51-1-32 

food for human consumption. (Code 1933, § 105-1106, enacted by Ga. L. 
1980, p. 69, § 1; Ga. L. 1987, p. 832, § 1; Ga. L. 1990, p. 44, § 1.) 

Cross references. — Inspection and han- Code Section 28-9-5, in 1988, "good faith" 

dling of food items donated to nonprofit was substituted for "good-faith" in subsec- 

organizations, § 26-1-1. tions (b), (c), and (d). 

Code Commission notes. — Pursuant to 

RESEARCH REFERENCES 

ALR. — Tort immunity of nongovernmen- 
tal charities — modern status, 25 ALR4th 

517. 

51-1-32. Separate causes of action for personal injury and property damage 
caused by motor vehicle. 

In cases arising from the wrongful or negligent operation of a motor 
vehicle in which the single wrongful or negligent act causes or results in 
both physical injuries to a person and injuries to the property of such 
person, the injured person shall have a separate and distinct cause of action 
against the person whose wrongful or negligent act caused such injury for 
the physical injury to his person and a separate and distinct cause of action 
for the injuries to his property. The injured party shall have the right, in his 
sole discretion, to prosecute each cause of action separately or to combine 
the two causes of action in one single action. (Code 1933, § 105-1 301A, 
enacted by Ga. L. 1973, p. 295, § 1.) 

Cross references. — Criminal penalties the Georgia Motor Vehicle Accident Repara- 

for homicide by vehicle and serious injury by tions Act, see 5 Ga. St. B.J. 321 (1969). 

vehicle, §§ 40-6-393, 40-6-394. For note discussing the family purpose car 

Law reviews. — For article advocating doctrine as an extension of the principle of 

moderate reform of auto accident compen- respondeat superior, see 3 Ga. St. B.J. 112 

sation system prior to Georgia's adoption of (1966). 

JUDICIAL DECISIONS 

Constitutionality of guest passenger rule. tained by the ordinary negligence of the 

— The guest passenger rule, by creating a owner or operator. Corey v. Jones, 650 F.2d 

distinction between paying and nonpaying 803 (5th Cir. 1981). 

passengers, does not violate the equal pro- The doctrines of res judicata and estoppel 

tection clause of U.S. Const., Amend. 14. by judgment are inapplicable to cases arising 

Corey v. Jones, 650 F.2d 803 (5th Cir. 1981). from motor vehicle collisions in which per- 

The guest passenger rule is reasonably sonal injury claims and property damage 

related to two legitimate purposes of the claims are dealt with in separate actions, 

rule: fostering hospitality among vehicle op- Childers v. F.A.F. Motor Cars, Inc., 171 Ga. 

erator and passengers and discouraging col- App. 232, 319 S.E.2d 90 (1984). 

lusive lawsuits. Corey v. Jones, 650 F.2d 803 Rule prohibiting assignment of personal 

(5th Cir. 1981). injury actions unaffected. — This section is 

The automobile guest passenger rule pre- consistent with § 44-12-24 in distinguishing 
eludes nonpaying guest passenger from re- between property damage and personal in- 
covering damages for personal injuries sus- jury claims, and in no way addresses or alters 

147 



51-1-32 



TORTS 



51-1-32 



the rule prohibiting assignment of personal 
injury causes of action. GEICO v. Hirsh, 211 
Ga. App. 374, 439 S.E.2d 59 (1993). 

Cited in Coaxum v. Graham, 151 Ga. App. 



75, 258 S.E.2d 740 (1979); American States 
Ins. Co. v. Walker, 223 Ga. App. 194, 477 
S.E.2d360 (1996). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 74 Am. Jur. 2d, Torts, § 59. 

C.J.S. — 1A C.J.S., Actions, § 137. 

ALR. — Injury by road vehicle to person 
on sidewalk, 1 ALR 840; 75 ALR 559. 

Liability for injury to child playing on or 
in proximity to automobile, 1 ALR 1385; 44 
ALR 434. 

Liability for damages by vehicle trailers, 3 
ALR 618. 

Measure of damages for destruction of or 
injury to commercial vehicle, 4 ALR 1350; 

169 ALR 1074. 

Liability of person transporting or con- 
ducting on highway an object which fright- 
ens horse, 5 ALR 940. 

Duty and liability to persons struck by 
automobile while crossing street at unusual 
place, or diagonally, 14 ALR 1176; 67 ALR 
313. 

Automobiles; effect of defective brakes on 
liability for injury, 14 ALR 1339; 63 ALR 398; 

170 ALR 611. 

Liability of guest for injury to third person 
due primarily to negligence of driver, 18 
ALR 365. 

Automobiles: liability of owner or opera- 
tor for injury to guest, 20 ALR 1014; 26 ALR 
1425; 40 ALR 1338; 47 ALR 327; 51 ALR 581; 
61 ALR 1252; 65 ALR 952. 

Personal care required of one riding in an 
automobile driven by another as affecting 
his right to recover against third persons, 22 
ALR 1294; 41 ALR 767; 47 ALR 293; 63 ALR 
1432; 90 ALR 984. 

Liability of street railway company for 
injury to person in "safety zone", 41 ALR 
376. 

Liability of carrier for injury to passenger 
from car window, 45 ALR 1541. 

Liability for personal injuries by tractor, 48 
ALR 939. 

Liability for injury to pedestrian struck by 
automobile as affected by his blindness, 
deafness, or other physical disability, 62 ALR 
578. 

Liability of owner for negligence of one to 
whom car is loaned or hired, 68 ALR 1008; 
100 ALR 920; 168 ALR 1364. 



Liability for injury to one riding on run- 
ning board of automobile or other place 
outside body of car, 80 ALR 553; 104 ALR 
312; 44 ALR2d 238. 

Size or weight of automobile or load in- 
volved in accident as factor in determining 
responsibility, 85 ALR 1173. 

Violation of traffic regulation requiring 
one intending to turn left at intersection to 
approach in traffic lane nearest to center of 
street or highway, 87 ALR 1165. 

What conduct in driving automobile 
amounts to wantonness, wilfulness, or the 
like, precluding defense of contributory 
negligence, 92 ALR 1367; 119 ALR 654. 

Liability for injury to pedestrian struck by 
automobile while traveling along street or 
highway, 93 ALR 551. 

Overcrowding motor vehicle or riding in 
unusual position thereon as affecting liabil- 
ity for injury or damage, 104 ALR 312; 44 
ALR2d 238. 

Liability of joint owners of automobile for 
injury or damage resulting from its opera- 
tion, 109 ALR 124. 

Liability for damage or injury by skidding 
motor vehicle, 113 ALR 1002. 

Right or duty to turn in violation of law of 
road to avoid traveler or obstacle, 113 ALR 
1328. 

Liability for injury to person or damage to 
property from stone or other object on 
surface of highway thrown by or from pass- 
ing vehicle, 115 ALR 1498. 

Collision between automobiles on bridge 
or approach thereto, 118 ALR 1196. 

Liability of owner or one in charge of 
automobile for injury due to its condition, to 
one, other than his employee or bailee use, 
engaged in some service or operation in 
connection with it, 122 ALR 1023. 

Admissibility and weight of evidence as to 
condition of automobile or parts thereof 
after accident, on issue as to responsibility 
for accident, 129 ALR 438. 

Necessity and sufficiency, in complaint or 
declaration in action for injury or damage 
due to dangerous condition of automobile 



148 



51-1-32 



GENERAL PROVISIONS 



51-1-32 



or other machine, of allegations as to partic- 
ular defects, 129 ALR 1274. 

Stopping vehicle on traveled portion of 
highway as affecting responsibility for colli- 
sion between vehicles, 131 ALR 562. 

Injury to guest of operator as within stat- 
utory or nonstatutory rule which makes 
owner of automobile liable for negligence of 
another operating the car with his consent, 
131 ALR 891. 

Liability for injury or damages resulting 
from traffic accident on highway involving 
vehicle in military service, 133 ALR 1298; 
147 ALR 1431. 

Liability for injury to bicyclist while hold- 
ing on to moving motor vehicle, 138 ALR 
1127. 

Insurer's right of subrogation against 
tort-feasor as affecting application of rule 
against splitting cause of action, 140 ALR 
1241; 166 ALR 870. 

Damages on account of loss of earnings or 
impairment on earning capacity due to 
wife's personal injury as recoverable by her 
or by her husband, 151 ALR 479. 

Res ipsa loquitur as applied to a collision 
between a moving automobile and a stand- 
ing automobile or other vehicle, 151 ALR 
876. 

Note: imputation of driver's negligence to 
passenger, 163 ALR 697. 

Civil rights and liabilities as affected by 
failure to comply with regulations as to reg- 
istration of automobile or motorcycle or 
licensing of operation, 163 ALR 1375. 

Automobile owner's common-law liability 
for negligence in entrusting car to known 
incompetent, reckless, or inexperienced per- 
son as affected by statute limiting owner's 
liability to use within terms of consent, 163 
ALR 1418. 

Negligence causing automobile accident 
as proximate cause of injury or death result- 
ing from acts done or attempted with refer- 
ence to person or property involved, 166 
ALR 752. 

Rights and remedies incident to 
subrogation to one but not both elements of 
a single cause of action for injury to person 
and damage to property, 166 ALR 870. 

Common-law liability based on entrusting 
automobile to incompetent, reckless, or un- 
licensed driver, 168 ALR 1364. 

Effect of defective brakes on liability for 
injury, 170 ALR 611. 



Reciprocal duties of driver of automobile 
and bicyclist or motorcyclist, 172 ALR 736. 

Custom or practice of drivers of motor 
vehicles as affecting question of negligence, 
172 ALR 1141; 77 ALR2d 1327. 

Duty as regards barriers for protection of 
automobile travel, 173 ALR 626. 

Physical defect, illness, drowsiness, or fail- 
ing asleep of motor vehicle operator as 
affecting liability for injury, 28 ALR2d 12; 93 
ALR3d 326; 1 ALR4th 556. 

Instructions on sudden emergency in mo- 
tor vehicle cases, 80 ALR2d 5; 102 ALR 781; 
118 ALR 982. 

Overcrowding motor vehicle or riding in 
unusual position thereon as affecting liabil- 
ity for injury or damage, 44 ALR2d 238. 

Custom or practice of drivers of motor 
vehicles as affecting question of negligence, 
77ALR2d 1327. 

Overcoming inference or presumption of 
driver's agency for owner, or latter's consent 
to operation, of automobile, 5 ALR2d 196. 

Proof of tide to motor vehicle requisite to 
recovery for injury thereof, 7 ALR2d 1347. 

Liability to automobile guest injured by 
falling from or through door of moving 
automobile, 9 ALR2d 1337. 

Liability of driver of private automobile 
for injury to occupant struck by another 
vehicle after alighting, 20 ALR2d 789. 

Liability for killing or injuring, by motor 
vehicle, of livestock or fowl on highway, 20 
ALR2d 1053. 

Liability of owner or operator of motor 
vehicle for accident resulting from alleged 
breaking of or defect in steering mechanism, 
23 ALR2d 539. 

Admissibility, in vehicle accident case, of 
evidence of opposing party's intoxication 
where litigant's pleading failed to allege 
such fact, 26 ALR2d 359. 

Liability for failure to provide motor vehi- 
cle with adequate rearview mirror, 27 ALR2d 
1040. 

Physical defect, illness, drowsiness, or fall- 
ing asleep of motor vehicle operator as 
affecting liability for injury, 28 ALR2d 12; 93 
ALR3d 326. 

Liability for injury or damage growing out 
of pulling out of parked motor vehicle, 29 
ALR2d 107. 

Liability for injury incident to towing au- 
tomobile, 30 ALR2d 1019. 

Liability for motor vehicle accident where 



149 



51-1-32 



TORTS 



51-1-32 



vision of driver is obscured by smoke, dust, 
atmospheric condition, or unclean wind- 
shield, 42ALR2d 13. 

Rights of injured guest as affected by 
obscured vision from vehicle in which he was 
riding, 42 ALR2d 350. 

Liability for injury occurring when cloth- 
ing of one outside motor vehicle is caught as 
vehicle is put in motion, 43 ALR2d 1282. 

Right of defendant in action for personal 
injury, property damage, or death, to bring 
in new parties as cross defendants to his 
counterclaim or the like, 46 ALR2d 1253. 

Liability of vehicle driver or owner for 
running over or hitting former passenger or 
guest who has alighted, 50 ALR2d 974. 

Recovery under automobile property 
damage policy expressly including or exclud- 
ing collision damage, where vehicle is struck 
by object failing thereon other than as a 
result of storm or the like, 54 ALR2d 381. 

Liability of motor vehicle owner or opera- 
tor for personal injury or death of passenger 
or guest occasioned by inhalation of gases or 
fumes from exhaust, 56 ALR2d 1099. 

Liability as between participants for acci- 
dent arising from private automobile or 
other vehicle racing on public street or 
highway, 59ALR2d481. 

Liability of state, municipality, or public 
agency for vehicle accident occurring be- 
cause of accumulation of water on street or 
highway, 61 ALR2d 425. 

Duty and liability of vehicle drivers ap- 
proaching intersection of one-way street with 
other street, 62 ALR2d 275. 

Duty and liability of vehicle drivers within 
parking lot, 62 ALR2d 288. 

Right to punitive or exemplary damages 
in action for personal injury or death caused 
by operation of automobile, 62 ALR2d 813. 

Liability for injury occasioned by backing 
of motor vehicle in public street or highway, 
63 ALR2d 5. 

Liability for injury occasioned by backing 
of motor vehicle from private premises into 
public street or highway, 63 ALR2d 108. 

Liability for injury or damage occasioned 
by backing of motor vehicle within private 
premises, 63 ALR2d 184. 

Instructions on unavoidable accident, or 
the like, in motor vehicle cases, 65 ALR2d 
12. 

Liability of owner or operator to adult 
trespasser in or on motor vehicle or equip- 
ment, 65 ALR2d 798. 



Liability for accident from ' jackkninng" 
of trailers or the like, 68 ALR2d 353. 

Liability for injury or damage from motor 
vehicle accident assertedly caused by insect, 
73ALR2d 1214. 

Instructions on sudden emergency in mo- 
tor vehicle cases, 80 ALR2d 5. 

Violation of statute requiring one involved 
in an accident to stop and render aid as 
affecting civil liability, 80 ALR2d 299. 

Liability for injury or damage caused by 
operation of bulldozer, earth grader, or sim- 
ilar earth-moving equipment, 81 ALR2d 456. 

Liability of owner or driver of 
double-parked motor vehicle for ensuing 
injury, death, or damage, 82 ALR2d 726. 

Negligence in connection with the push- 
ing of one motor vehicle by another, 82 
ALR2d 918. 

Liability arising from accidents involving 
police vehicles, 83 ALR2d 383. 

Liability of governmental unit or its officer 
for injury or damage from operation of 
vehicle pursued by police, 83 ALR2d 452. 

Liability for injury or damages resulting 
from operation of vehicle in funeral proces- 
sion or in procession which is claimed to 
have such legal status, 85 ALR2d 692. 

Criminal responsibility for injury or death 
in operation of mechanically defective mo- 
tor vehicle, 88 ALR2d 1165. 

Liability for accident arising from fall of 
motor vehicle load upon, or into path of, 
another motor vehicle, 91 ALR2d 897. 

Liability for injury or damage caused in 
collision with, or avoiding collision with, 
open door of parked automobile, 92 ALR2d 
1037. 

Improper use of automobile license plates 
as affecting liability or right to recover for 
injuries, death, or damages in consequence 
of automobile accident, 99 ALR2d 904. 

Liability for automobile accident, other 
than direct collision with pedestrian, as af- 
fected by reliance upon or disregard of 
stop-and-go signal, 2 ALR3d 12. 

Liability for collision of automobile with 
pedestrian at intersection as affected by reli- 
ance upon or disregard of stop-and-go sig- 
nal, 2 ALR3d 155. 

Liability for automobile accident at inter- 
section as affected by reliance upon or dis- 
regard of "yield" sign or signal, 2 ALR3d 
275. 

Liability for automobile accident at inter- 



150 



51-1-32 



GENERAL PROVISIONS 



51-1-32 



section as affected by reliance upon or dis- 
regard of unchanging stop signal or sign, 3 
ALR3d 180. 

Liability for automobile accident at inter- 
section as affected by reliance upon or dis- 
regard of unchanging caution, slow, danger, 
or like sign or signal, 3 ALR3d 507. 

Liability for collision of automobile with 
pedestrian at intersection as affected by reli- 
ance upon or disregard of traffic sign or 
signal other than stop-and-go signal, 3 
ALR3d 557. 

Parking illegally at or near street corner or 
intersection as affecting liability for motor 
vehicle accident, 4 ALR3d 324. 

Owning, leasing, or otherwise engaging in 
business or furnishing services for taxicabs 
as basis of tort liability for acts of taxi driver 
under respondeat superior doctrine, 8 
ALR3d 818. 

Liability for accident occurring in motor 
transportation of house or similar structure 
on public streets or highways, 9 ALR3d 1436. 

What amounts to negligence within mean- 
ing of statutes penalizing negligent homi- 
cide by operation of a motor vehicle, 20 
ALR3d 473. 

Automobiles: duty and liability with re- 
spect to giving audible signal upon ap- 
proaching pedestrian, 24 ALR3d 183. 

Burden of pleading and proving guest 
status, or absence thereof, under automobile 
guest statute, 24 ALR3d 1400. 

Liability of motorist colliding with person 
engaged about stalled or disabled vehicle on 
or near highway, 27 ALR3d 12. 

Admissibility of evidence of habit, custom- 
ary behavior, or reputation as to care of 
pedestrian on question of his care at time of 
collision with motor vehicle giving rise to his 
injury or death, 28 ALR3d 1293. 

Automobiles: liability of motorist for colli- 
sion as affected by attempts to avoid dog or 
other small animal in road, 41 ALR3d 1 124. 

Automobiles: liability for accident arising 
from escape of trailer, 43 ALR3d 725. 

Anti-hitchhiking laws: their construction 
and effect in action for injury to hitchhiker, 
46 ALR3d 964. 

Liability of owner or operator of motor 
vehicle or aircraft for injury or death alleg- 
edly resulting from failure to furnish or 
require use of seat belt, 49 ALR3d 295. 

Automobiles: liability of one fleeing police 
for injury resulting from collision of police 



vehicle with another vehicle, person or ob- 
ject, 51 ALR3d 1226. 

Liability for injury to or death of passen- 
ger from accident due to physical condition 
of carrier's employee, 53 ALR3d 669. 

Liability or recovery in automobile negli- 
gence action as affected by absence on insuf- 
ficiency of lights on parked or standing 
motor vehicle, 61 ALR3d 13. 

Liability or recovery in automobile negli- 
gence action arising out of collision or upset 
as affected by operation of vehicle without 
front lights, or with improper front lights, 62 
ALR3d 560. 

Liability or recovery of automobile negli- 
gence action arising out of collision or upset 
as affected by operation of vehicle without or 
with improper taillights or rear reflectors, 62 
ALR3d 771. 

Liability or recovery in automobile negli- 
gence action arising out of collision or upset 
as affected by operation of vehicle without, 
or with improper, clearance, load, or similar 
auxiliary lights, 62 ALR3d 844. 

Liability or recovery in automobile negli- 
gence action as affected by driver's being 
blinded by lights of motor vehicle, 64 ALR3d 
551. 

Liability or recovery in automobile negli- 
gence action as affected by driver's being 
blinded by lights other than those of a motor 
vehicle, 64 ALR3d 760. 

No-fault: right of insurer to reimburse- 
ment out of recovery against tortfeasor, 69 
ALR3d 830. 

Automobile occupant's failure to use seat 
belt as contributory negligence, 92 ALR3d 9. 

Liability for automobile accident allegedly 
caused by driver's blackout, sudden uncon- 
sciousness, or the like, 93 ALR3d 326. 

Nonuse of seatbelt as reducing amount of 
damages recoverable, 95 ALR3d 239; 62 
ALR5th 537. 

Liability, in motor vehicle-related cases, of 
governmental entity for injury or death re- 
sulting from ice or snow on surface of high- 
way or street, 97 ALR3d 11. 

Products liability: personal injury or death 
allegedly caused by defect in braking system 
in motor vehicle, 99 ALR3d 179. 

Liability of common carrier for personal 
injury or death of passenger occasioned by 
inhalation of gases or fumes from exhaust, 
99ALR3d751. 

Products liability: personal injury or death 



151 



51-1-32 



TORTS 



51-1-32 



allegedly caused by defect in drive train 
system in motor vehicle, 100 ALR3d 471. 

Liability of governmental unit or its offic- 
ers for injury to innocent pedestrian or 
occupant of parked vehicle, or for damage 
to such vehicle, as result of police chase, 100 
ALR3d 815. 

Products liability: personal injury or death 
allegedly caused by defect in suspension 
system in motor vehicle, 100 ALR3d 912. 

Motor vehicle passenger's contributory 
negligence or assumption of risk where acci- 
dent resulted from driver's drowsiness, phys- 
ical defect, or illness, 1 ALR4th 556. 

Motor carrier's liability for personal injury 
or death of passenger caused by debris, litter, 
or other foreign object on floor or seat of 
vehicle, 1 ALR4th 1249. 

Liability for negligent operation of dune 
buggy, 2 ALR4th 795. 

Liability of governmental unit or its offic- 
ers for injury to innocent occupant of mov- 
ing vehicle, or for damage to such vehicle, as 
result of police chase, 4 ALR4th 865. 

Products liability: personal injury or death 
allegedly caused by defect in electrical sys- 
tem in motor vehicle, 5 ALR4th 662. 

Immediacy of observation of injury as 
affecting right to recover damages for shock 
or mental anguish from witnessing injury to 
another, 5 ALR4th 833. 

Liability of governmental unit for injuries 
caused by driver of third vehicle to person 
whose vehicle had been stopped by police 
car, 17 ALR4th 897. 

Liability of person, other than owner of 
animal or owner or operator of motor vehi- 
cle, for damage to motor vehicle or injury to 
person riding therein resulting from colli- 
sion with domestic animal at large in street 
or highway, 21 ALR4th 132. 

Liability of owner or operator of vehicle 
for damage to motor vehicle or injury to 
person riding therein resulting from colli- 
sion with domestic animal at large in street 
or highway, 21 ALR4th 159. 

Fact that passenger in vehicle is owner as 
affecting right to recover from driver for 
injuries to, or death of, passenger incurred 
in consequence of driver's negligence, 21 
ALR4th 459. 

Simultaneous injury to person and prop- 
erty as giving rise to single cause of action — 
modern cases, 24 ALR4th 646. 



Motor vehicle operator's liability for acci- 
dent occurring while driving with vision 
obscured by smoke or steam, 32 ALR4th 933. 

Liability of highway user for injuries result- 
ing from failure to remove or protect against 
material spilled from vehicle onto public 
street or highway, 34 ALR4th 520. 

Excessiveness or inadequacy of punitive 
damages awarded in personal injury or 
death cases, 35 ALR4th 441. 

Fact that passenger in negligendy oper- 
ated motor vehicle is owner as affecting 
passenger's liability to or rights against third 
person — modern cases, 37 ALR4th 565. 

Motorist's liability for striking person lying 
in road, 41 ALR4th 303. 

Construction and application of statute 
imposing liability expressly upon motor ve- 
hicle lessor for damage caused by operation 
of vehicle, 41 ALR4th 993. 

Liability for personal injury or property 
damage caused by unauthorized use of auto- 
mobile which had been parked with keys 
removed from ignition, 70 ALR4th 276. 

Rescue doctrine: liability of one who neg- 
ligently causes motor vehicle accident for 
injuries to person subsequently attempting 
to rescue persons or property, 73 ALR4th 
737. 

Modern status of rule imputing motor 
vehicle driver's negligence to passenger on 
joint venture theory, 3 ALR5th 1. 

Excessiveness or inadequacy of punitive 
damages awarded in personal injury or 
death cases, 12 ALR5th 195. 

Motorist's liability for signaling other ve- 
hicle or pedestrian to proceed, or to pass 
signaling vehicle, 14 ALR5th 193. 

Instructions on "unavoidable accident," 
"mere accident," or the like, in motor vehi- 
cle case — modern cases, 21 ALR5th 82. 

Failure to use or misuse of automobile 
child safety seat or restraint system as affect- 
ing recovery for personal injury or death, 46 
ALR5th 557. 

Liability under state law for injuries result- 
ing from defective automobile seatbelt, 
shoulder harness, or restraint system, 48 
ALR5th 1. 

Comparative negligence of driver as de- 
fense to enhanced injury, crash worthiness, 
or second collision claim, 69 ALR5th 625. 



152 



51-1-33 GENERAL PROVISIONS 51-1-34 

51-1-33. Settlement of single action under Code Section 51-1-32 — Evi- 
dence in separate action. 

If the two causes of action specified in Code Section 51-1-32 are tried 
separately, the fact that a settlement has been made or that a judgment has 
been rendered in the action for property damage shall not be admissible in 
evidence in the action for physical injuries to the person. The fact that a 
settlement has been made or a judgment rendered in the action for the 
physical injuries to the person shall not be admissible in evidence in the 
action for property damage. (Code 1933, § 105-1302A, enacted by Ga. L. 
1973, p. 295, § 1.) 

Law reviews. — For article surveying torts 
law, see 34 Mercer L. Rev. 271 (1982). 

JUDICIAL DECISIONS 

The doctrines of res judicata and estoppel App. 232, 319 S.E.2d 90 (1984) . 

by judgment are inapplicable to cases arising Cited in Chance v. Hanson, 160 Ga. App. 

from motor vehicle collisions in which per- 329, 287 S.E.2d 57 (1981); American States 

sonal injury claims and property damage i ns . Co. v. Walker, 223 Ga. App. 194, 477 

claims are dealt with in separate actions. S.E.2d 360 (1996). 
Childers v. F.A.F. Motor Cars, Inc., 171 Ga. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 74 Am. Jur. 2d, Torts, § 59. 

51-1-34. Settlement of single action under Code Section 51-1-32 — Effect in 
separate action. 

The settlement of a claim or cause of action arising from a motor vehicle 
collision for property damage shall not bar or otherwise affect the 
prosecution of the claim or cause of action for physical injury to the person. 
The settlement of a claim or cause of action arising from a motor vehicle 
collision for physical injury to the person shall not bar or otherwise affect 
the prosecution of the claim or cause of action for property damage. (Code 
1933, § 105-1303A, enacted by Ga. L. 1973, p. 295, § 1.) 

RESEARCH REFERENCES 

Am. Jur. 2d. — 74 Am. Jur. 2d, Torts, § 59. damage policy expressly including or exclud- 

CJ.S. — 50 C.J.S., Judgments, § 697 et ing collision damage, where vehicle is struck 

seq. by object falling thereon other than as a 

ALR. — Avoidance of release of claim for result of storm or the like, 54 ALR2d 381. 
personal injuries on ground of mistake or Appealability of order vacating, or refus- 
fraud respecting the nature of the claim } n g to vacate, approval of setdement of in- 
covered, 164 ALR 402. font's tort claim, 77 ALR2d 801. 

Recovery under automobile property 

153 



51-1-35 TORTS 51-1-35 

51-1-35. When negotiating or obtaining statement from injured adverse 
party prohibited; effect of prohibited settlement in court action. 

(a) No person whose interest is or may become adverse to an injured 
person who is confined to a hospital or health care center as a patient shall, 
within 15 days from the date of the occurrence causing the person's injury: 

(1) Negotiate or attempt to negotiate a settlement with the injured 
patient; 

(2) Obtain or attempt to obtain a general release of liability from the 
injured patient; or 

(3) Obtain or attempt to obtain any statement, either written or oral 
from the injured patient, for use in negotiating a settiement or obtaining 
a release. 

(b) Any settlement agreement entered into or any general release of 
liability made by any person who is confined in a hospital or health care 
center after he incurs a personal injury which is obtained contrary to the 
provisions of subsection (a) of this Code section shall not be admitted as 
evidence in any court action relating to the injury and shall not be utilized 
for any purpose in any legal action in connection therewith. 

(c) Nothing in this Code section is intended to preclude an interested 
party from visiting an injured party while confined as a patient to a hospital 
or health care center for purposes of expressing concern for the injured or 
determining the extent of injuries incurred. (Ga. L. 1976, p. 202, § 1.) 

JUDICIAL DECISIONS 

Claims adjuster violated this section. — A to read, reason or investigate for himself, 

claims adjuster, even absent a fiduciary rela- Cravey v. Johnson, 229 Ga. App. 130, 493 

tionship, may not induce a claimant by trick, S.E.2d 536 (1997). 

artifice or misrepresentation to sign a gen- Cited in Hardigree v. McMichael, 181 Ga. 

eral release while the claimant is under a App. 583, 353 S.E.2d 78 (1987). 
disability which deprives him of the capacity 

RESEARCH REFERENCES 

Am. Jur. 2d. — 43 Am. Jur. 2d, Insurance, Avoidance of release of claims for per- 

§§ 1703 et seq., 1803. sonal injuries on ground of mistake or fraud 

C.J.S. — 46A C.J.S., Insurance, § 1341 et relative to the extent or nature of injuries, 48 

seq. ALR 1462; 71 ALR2d 82. 

ALR. — Judgment against or settlement Retention of consideration paid under 

by person responsible for a personal injury release in settlement of claim as ratification, 

as affecting his liability on account of im- 76 ALR 344. 

proper medical or surgical treatment of in- Representation by insurer's agent as to 

jured person, 29 ALR 1313. nonliability as fraud avoiding release, 96 

Release by, or judgment in favor of, per- ALR 1001. 

son injured as barring action for his death, Release by insured after accident or dis- 

39 ALR 579. ability which ultimately results in his death as 

154 



51-1-36 



GENERAL PROVISIONS 



51-1-36 



affecting right of beneficiary in respect of 
indemnity under accident policy or life pol- 
icy with accident or disability feature, 115 
ALR 425. 

Avoidance of release of claim for personal 
injuries on ground of mistake or fraud re- 
specting the nature of the claim covered, 
164 ALR 402. 

Avoidance of release of personal injury 
claims on ground of fraud or mistake as to 
the extent or nature of injuries, 71 ALR2d 
82. 

Avoidance of release of claim for personal 
injuries on ground of misrepresentation as 
to matters of law by tortfeasor of his repre- 
sentative insurer, 21 ALR2d 272. 

Constitutionality, construction, and effect 
of legislation forbidding or limiting the use, 
as evidence, of statement secured from an 
injured person, 22 ALR2d 1269. 

Admissibility of evidence of unperformed 
compromise agreement, 26 ALR2d 858. 

Collision insurance: insured's release of 
tort-feasor before settlement by insurer as 
releasing insurer from liability, 38 ALR2d 
1095. 



Right to jury trial on issue of validity of 
release, 43 ALR2d 786. 

Appealability of order vacating, or refus- 
ing to vacate, approval of setdement of in- 
fant's tort claim, 77 ALR2d 801. 

Setdement with or release of person di- 
rectly liable for injury or death as releasing 
liability under civil damage act, 78 ALR2d 
998. 

Release of (or covenant not to sue) master 
or principal as affecting liability of servant or 
agent for tort, or vice versa, 92 ALR2d 533. 

Validity of release from civil liability where 
release is executed by person while incarcer- 
ated, 86 ALR3d 1230. 

Validity of release of prospective right to 
wrongful death action, 92 ALR3d 1232. 

Modern status of rules as to avoidance of 
release of personal injury claim on ground 
of mistake as to nature and extent of inju- 
ries, 13 ALR4th 686. 

Release of, or covenant not to sue, one 
primarily liable for tort, but expressly reserv- 
ing rights against one secondarily liable, as 
bar to recovery against latter, 24 ALR4th 547. 



51-1-36. Duty of care of operator of motor vehicle to passengers. 

The operator of a motor vehicle owes to passengers therein the same duty 
of ordinary care owed to others. (Code 1933, § 105-104.1, enacted by Ga. L. 
1982, p. 1283, § 1; Code 1981, § 51-1-36, enacted by Ga. L. 1982, p. 1283, 
§ 2.) 



Law reviews. — For article criticizing 
Georgia's traditional rules for determining 
choice of law questions and discussing avail- 



able alternatives, see 34 Mercer L. Rev. 787 
(1983). 



JUDICIAL DECISIONS 



Slight degree of care no longer sufficient. 

— Prior to the enactment of this section, a 
host driver owed only a duty to exercise a 
slight degree of care in regard to passengers 
in his motor vehicle. Bostwick v. Flanders, 
171 Ga. App. 93, 318 S.E.2d 801 (1984). 

No retroactive application of change in 
"guest passenger" rule. — The trial court 
did not err in refusing to apply this section, 
changing the "guest passenger" rule as to 
the duty owed by an automobile operator to 
passengers to ordinary care, to a case involv- 
ing a January 1981 accident, since, although 



a statute is "remedial" which affects only the 
procedure and practice of the courts and 
thus may be retroactive in application, the 
"guest passenger" rule established the duty 
owed by an automobile owner or operator to 
a nonpaying guest passenger, and there is 
nothing in the enactment of this section 
which discloses a legislative intent to apply 
the terms thereof retroactively. Rider v. Tay- 
lor, 166 Ga. App. 474, 304 S.E.2d 557 (1983). 
Cited in Powell v. Clan ton, 173 Ga. App. 
363, 326S.E.2d495 (1985). 



155 



51-1-37 torts 51-1-37 

RESEARCH REFERENCES 

ALR. — Modern status of choice of law in 
application of automobile guest statutes, 63 
ALR4th 167. 

51-1-37. Negligent or improper administration of polygraph examination; 
measure of damages. 

(a) Any person who is given a polygraph examination and who suffers 
damages as a result of: 

(1) Such polygraph examination having been administered in a 
negligent manner; or 

(2) Such polygraph examination having not been administered in 
conformity with the provisions of Chapter 36 of Title 43 

shall have a cause of action against the polygraph examiner. 

(b) The measure of damages shall be the actual damages sustained by 
such person, together with reasonable attorneys' fees, filing fees, and 
reasonable costs of the action. Reasonable costs of the action may include, 
but shall not be limited to, the expenses of discovery and document 
reproduction. Damages may include, but shall not be limited to, back pay 
for the period during which such person did not work or was denied a job 
as a result of such examination. (Code 1981, § 51-1-37, enacted by Ga. L. 
1985, p. 1008, § 2.) 

Editor's notes. — Ga. L. 1985, p. 1008, given with respect to employment may be 
§ 3, not codified by the General Assembly, admitted in an administrative proceeding 
provided as follows: "Nothing contained in dealing solely with action taken with respect 
this Act shall be construed so as to authorize to the employment; nor shall this Act be 
the results of any polygraph examination to construed as a legislative determination that 
be introduced in evidence in any judicial or such examinations are reliable to demon- 
administrative proceeding in this state; pro- strate any fact or that they have any probative 
vided, however, that such an examination value." 

JUDICIAL DECISIONS 

Refusal to take polygraph examination. — of official duties; (2) that the answer cannot 

Dismissal of public employees from employ- be used against die employee in any subse- 

ment upon refusal to take a polygraph ex- quent criminal prosecution; and (3) that the 

amination is permissible if the employee is penalty for refusal is dismissal. Moss v. Cen- 

informed: (1) that the questions will relate tral State Hosp., 179 Ga. App. 359, 346 

specifically and narrowly to the performance S.E.2d 580 (1986). 

RESEARCH REFERENCES 

AJLR. — Employee's action in tort against ilar test at request of actual or prospective 
party administering polygraph, drug, or sim- employer, 89 ALR4th 527. 

156 









51-1-38 GENERAL PROVISIONS 51-1-40 

Construction and application of Em- 
ployee Polygraph Protection Act of 1988 (29 
USCA § 2001 et seq.), 154 ALR Fed. 315. 

51-1-38. Tort immunity for medical students; exceptions. 

(a) No student who participates in the provision of medical care or 
medical treatment under the supervision of a medical facility, academic 
institution, or doctor of medicine, as a part of an academic curriculum 
leading to the award of a medical degree, shall be liable for any civil 
damages as a result of any act or omission in such participation, except for 
willful or wanton misconduct. 

(b) Subsection (a) of this Code section shall not be construed to affect 
or limit the liability of a medical facility, academic institution, or doctor of 
medicine. (Code 1981, § 51-1-38, enacted by Ga. L. 1987, p. 363, § 1.) 

Code Commission notes. — Pursuant to § 1, was redesignated as Code Section 
Code Section 28-9-5, in 1987, Code Section 51-1-39. 
51-1-38, as enacted by Ga. L. 1987, p. 433, 

51-1-39. Liability for injuries of person committing crime on political 
subdivision property. 

A person who engages in a criminal act on property owned or leased by 
a political subdivision of this state and who suffers an injury as a result of 
said criminal act which is not inflicted by an officer, employee, or agent of 
such political subdivision shall not have a cause of action against such 
political subdivision for any injury sustained. The provisions of this Code 
section shall not have the effect of waiving the sovereign immunity of any 
political subdivision. (Code 1981, § 51-1-39, enacted by Ga. L. 1987, p. 433, 
§ 1.) 

Code Commission notes. — Pursuant to 51-1-38, as enacted by Ga. L. 1987, p. 433, 
Code Section 28-9-5, in 1987, Code Section § 1, was redesignated as this Code section. 

51-1-40. Liability for acts of intoxicated persons. 

(a) The General Assembly finds and declares that the consumption of 
alcoholic beverages, rather than the sale or furnishing or serving of such 
beverages, is the proximate cause of any injury, including death and 
property damage, inflicted by an intoxicated person upon himself or upon 
another person, except as otherwise provided in subsection (b) of this Code 
section. 

(b) A person who sells, furnishes, or serves alcoholic beverages to a 
person of lawful drinking age shall not thereby become liable for injury, 
death, or damage caused by or resulting from the intoxication of such 
person, including injury or death to other persons; provided, however, a 
person who willfully, knowingly, and unlawfully sells, furnishes, or serves 

157 



51-1-40 TORTS 51-1-40 

alcoholic beverages to a person who is not of lawful drinking age, knowing 
that such person will soon be driving a motor vehicle, or who knowingly 
sells, furnishes, or serves alcoholic beverages to a person who is in a state of 
noticeable intoxication, knowing that such person will soon be driving a 
motor vehicle, may become liable for injury or damage caused by or 
resulting from the intoxication of such minor or person when the sale, 
furnishing, or serving is the proximate cause of such injury or damage. 
Nothing contained in this Code section shall authorize the consumer of any 
alcoholic beverage to recover from the provider of such alcoholic beverage 
for injuries or damages suffered by the consumer. 

(c) In determining whether the sale, furnishing, or serving of alcoholic 
beverages to a person not of legal drinking age is done willfully, knowingly, 
and unlawfully as provided in subsection (b) of this Code section, evidence 
that the person selling, furnishing, or serving alcoholic beverages had been 
furnished with and acted in reliance on identification as defined in 
subsection (d) of Code Section 3-3-23 showing that the person to whom the 
alcoholic beverages were sold, furnished, or served was 21 years of age or 
older shall constitute rebuttable proof that the alcoholic beverages were not 
sold, furnished, or served willfully, knowingly, and unlawfully. 

(d) No person who owns, leases, or otherwise lawfully occupies a 
premises, except a premises licensed for the sale of alcoholic beverages, 
shall be liable to any person who consumes alcoholic beverages on the 
premises in the absence of and without the consent of the owner, lessee, or 
lawful occupant or to any other person, or to the estate or survivors of 
either, for any injury or death suffered on or off the premises, including 
damage to property, caused by the intoxication of the person who con- 
sumed the alcoholic beverages. (Code 1981, § 51-1-40, enacted by Ga. L. 
1988, p. 1692, § 1.) 

Cross references. — Sale, etc., of alcoholic not codified by the General Assembly, pro- 
beverages to intoxicated persons, § 3-3-22. vides: "This Act shall apply only to causes of 
Sale, etc., of alcoholic beverages to underage action which arise under Code Section 
persons, § 3-3-23. 51-1-40 on or after the effective date of this 

Editor's notes. — Ga. L. 1988, p. 1692, Act [April 12, 1988]." 
§ 2, as amended by Ga. L. 1989, p. 301, § 1, 

JUDICIAL DECISIONS 

Constitutionality. — The word "soon" in tions, Inc., 263 Ga. 622, 436 S.E.2d 659 

subsection (b) is sufficiently definite and (1993). 

certain in meaning to give notice to a seller The term "consumer" as used in subsec- 
that it could be held liable for injuries tion (b) means one who purchases and con- 
occurring four and one-half hours after the sumes alcohol, then injures himself; it does 
sale of alcohol to a minor; the dictates of due not refer to one who purchases and con- 
process do not demand that the word be sumes alcohol, then is injured by another, 
construed as having so narrow a time frame Griffin Motel Co. v. Strickland, 223 Ga. App. 
as to exclude such an interval from the 812, 479 S.E.2d 401 (1996). 
ambit of this section. Riley v. H & H Opera- Knowledge is essential element. — The 

158 



51-1-40 



GENERAL PROVISIONS 



51-1-40 



store clerk must have had actual or construc- 
tive knowledge of the elements of this sec- 
tion in order to be held liable. Jaques v. 
Kendrick, 43 E3d 628 (11th Cir. 1995). 

Exclusive remedy for claims based on 
furnishing alcohol. — A provider of alcohol 
is insulated from liability to third parties 
except as provided in subsection (b); thus, in 
a wrongful death action against a fraternity 
arising from an accident caused by an intox- 
icated driver who consumed alcohol at a 
party sponsored by the fraternity, the trial 
court erred in denying the fraternity's mo- 
tion for summary judgment on the plain- 
tiff's general negligence claims. Kappa 
Sigma Int'l Fraternity v. Tootle, 221 Ga. App. 
890, 473S.E.2d213 (1996). 

No liability for furnishing premises. — 
Subsection (b) of this Code section does not 
impose liability upon one who merely fur- 
nishes the premises upon which alcohol is 
consumed. Viau v. Fred Dean, Inc., 203 Ga. 
App. 801, 418 S.E.2d 604, cert, denied, 203 
Ga. App. 905, 418 S.E.2d 604 (1992). 

In a wrongful death action against a fra- 
ternity arising from an accident caused by an 
intoxicated driver, although the fraternity 
sponsored the party at which the driver 
consumed alcohol, that was insufficient to 
impose liability upon the fraternity since it 
did not furnish the alcohol consumed by the 
driver. Kappa Sigma Int'l Fraternity v. Tootle, 
221 Ga. App. 890, 473 S.E.2d 213 (1996). 

Neither resident's allowance of underage 
drinking at the apartment nor the landlord's 
failure to call the police when drinking was 
detected was the proximate cause of death of 
a guest who was stabbed while attempting to 
break up a fight at the party. Hansen v. 
Etheridge, 232 Ga. App. 408, 501 S.E.2d 517 
(1998). 

Effect on action for sale to minor. — This 
section does not preclude a cause of action 
pursuant to § 51-1-18 so long as the damages 
sought are only those contemplated by the 
provisions of § 51-12-6. Leach v. Braswell, 
804 F. Supp. 1551 (S.D. Ga. 1992), aff'd, 8 
F.3d37 (11th Cir. 1993). 

Actual knowledge that a customer would 
be driving soon was not required where 
there was evidence that defendant, a tavern, 
should have known that the customer would 
be driving. Griffin Motel Co. v. Strickland, 
223 Ga. App. 812, 479 S.E.2d 401 (1996). 

Actual knowledge that the buyer is a minor 
and will be driving soon is not required; if 



one in the exercise of reasonable care 
should have known that the recipient of the 
alcohol was a minor and would be driving 
soon, he or she will be deemed to have 
knowledge of that fact. Riley v. H & H 
Operations, Inc., 263 Ga. 622, 436 S.E.2d 
659 (1993). 

Exclusion in comprehensive business lia- 
bility insurance policy applying to sale of 
intoxicated beverages to a minor or to an 
intoxicated person excluded coverage for 
claims based on violations of statute on sales 
of alcohol to minors and drams shop law and 
was not void as against public policy. Hart- 
ford Ins. Co. v. Franklin, 206 Ga. App. 193, 
424 S.E.2d 803 (1992); Kirby v. Northwest- 
ern Nat'l Cas. Co., 213 Ga. App. 673, 445 
S.E.2d 791 (1994). 

No parental liability for unattended minor 
son's gathering. — The trial court erred by 
denying a motion for summary judgment 
where the uncontroverted evidence estab- 
lished that parents of a minor neither knew 
nor should have known their son had a 
propensity for making alcohol available to 
underage guests at their home during their 
absence, the parents left no alcohol in the 
home upon their departure and had strictiy 
prohibited the use of alcohol during their 
absence. Manuel v. Koonce, 206 Ga. App. 
582, 425 S.E.2d 921 (1992), overruled on 
other grounds, Riley v. H & H Operations, 
Inc., 263 Ga. 622, 436 S.E.2d 659 (1993). 

This section did not apply in an action by 
parents under § 51-1-18, based on allega- 
tions that defendants furnished alcoholic 
beverages to their son without their permis- 
sion. Eldridge v. Aronson, 221 Ga. App. 662, 
472 S.E.2d 497 (1996). 

No liability for departing passengers. — 
The trial court erred by denying a motion 
for summary judgment where the 
uncontroverted evidence established that 
defendant, a minor hosting an unattended 
party at his parents' residence, watched as 
his friend departed as a passenger in a 
vehicle which he understood would conduct 
his friend home. Manuel v. Koonce, 206 Ga. 
App. 582, 425 S.E.2d 921 (1992), overruled 
on other grounds, Riley v. H & H Opera- 
tions, Inc., 263 Ga. 622, 436 S.E.2d 659 
(1993). 

An employer could not be held liable for 
injuries caused by his employees to plaintiff, 
a limousine service driver, on the ground 



159 



51-1-41 



TORTS 



51-1-41 



that the employer provided alcoholic bever- 
ages to the employees, because the employer 
arranged for them to be transported home 
to prevent them from driving; the case did 
not fall within any exception delineated in 
subsection (b) of this section. Ihesiaba v. 
Pelletier, 214 Ga. App. 721, 448 S.E.2d 920 
(1994). 

Constructive knowledge insufficient. — 
Constructive knowledge is insufficient for 
liability under this section and where there 
was no evidence that cashier knew of the 
other minor's presence, the cashier could 
not be said to have "willingly or knowingly" 
furnished the group with alcohol or to have 
known of their imminent driving. Jaques v. 
Lever, 831 F. Supp. 881 (S.D. Ga. 1993), 
aff'd, 43 F.3d 628 (11th Cir. 1995). 

No liability for intoxication of minor 
other than buyer. — A seller, furnisher, or 
supplier of alcoholic beverages to a minor 
cannot be held liable for the negligent acts 
of a second minor intoxicated by such bev- 
erages when the seller is not alleged to have 
had actual knowledge of the second minor's 
presence and affiliation with the first. 
Perryman v. Lufran, Inc., 209 Ga. App. 654, 
434 S.E.2d 112 (1993), overruled on other 
grounds, Riley v. H & H Operations, Inc., 
263 Ga. 622, 436 S.E.2d 659 (1993). 

Assumption of risk defense authorized. — 
In an action alleging that defendant willfully 



and knowingly sold beer to a third party who 
negligently caused the death of plaintiff's 
decedent, defendant properly asserted as a 
defense that the deceased assumed the risk 
of riding with the obviously intoxicated third 
party. Taylor v. RaceTrac Petroleum, Inc., 
238 Ga. App. 761, 519 S.E.2d 282 (1999). 

Evidence. — Circumstantial evidence pro- 
vided by a deputy sheriff that he found a 
motorist in an intoxicated condition four 
hours after the motorist left the host's party 
was insufficient to contradict the host's di- 
rect and positive evidence that the motorist 
was not noticeably intoxicated when he was 
furnished alcoholic beverages at the party. 
McElroy v. Cody, 210 Ga. App. 201, 435 
S.E.2d 618 (1993). 

Evidence showing only that defendant un- 
lawfully sold beer to underaged purchasers, 
which later in the day was consumed by 
another underaged person who, while intox- 
icated, drove a motor vehicle, which was 
involved in a fatal accident, is not sufficient 
to establish liability under this section. Tay- 
lor v. N.I.L., Inc., 221 Ga. App. 99, 470 S.E.2d 
491 (1996). 

Cited in Steedley v. Hundey's Jiffy Stores, 
Inc., 209 Ga. App. 23, 432 S.E.2d 625 (1993); 
Pass v. Bouwsma, 239 Ga. App. 902, 522 
S.E.2d484 (1999). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 45 Am. Jur. 2d, Intoxicat- 
ing Liquors, § 502 et seq. 

C.J.S. — 48A C.J.S., Intoxicating Liquors, 
§§ 428 et seq., 448 et seq. 

ALR. — Social host's liability for injuries 
incurred by third parties as a result of intox- 
icated guest's negligence, 62 ALR4th 16. 

Tort liability of college or university for 
injury suffered by student as a result of own 
or fellow student's intoxication, 62 ALR4th 
81. 



Passenger's liability to vehicular accident 
victim for harm caused by intoxicated motor 
vehicle driver, 64 ALR4th 272. 

Validity, construction, and effect of statute 
limiting amount recoverable in dram shop 
action, 78 ALR4th 542. 

Social host's liability for death or injuries 
incurred by person to whom alcohol was 
served, 54 ALR5th 313. 



51-1-41. Liability of sports officials at amateur athletic contests. 

(a) Sports officials who officiate amateur athletic contests at any level of 
competition in this state shall not be liable to any person or entity in any 
civil action for injuries or damages claimed to have arisen by virtue of 
actions or inactions related in any manner to officiating duties within the 
confines of the athletic facility at which the athletic contest is played. 



160 



51-1-42 GENERAL PROVISIONS 51-1-42 

(b) For the purposes of this Code section, the term "sports officials" 
means: 

(1) Those individuals who serve as referees, umpires, linesmen, and 
those who serve in similar capacities but may be known by other titles and 
are duly registered with or are members of a local, state, regional, or 
national organization which is engaged in part in providing education 
and training to sports officials; and 

(2) Those individuals who render service without compensation as a 
manager, coach, instructor, or assistant manager, coach, or instructor in 
any system of supervised recreation established pursuant to Chapter 64 of 
Tide 36. 

(c) Nothing in this Code section shall be deemed to grant the protection 
set forth in subsection (a) of this Code section to sports officials who cause 
injury or damage to a person or entity by actions or inactions which are 
intentional, willful, wanton, reckless, malicious, or grossly negligent. (Code 
1981, § 51-1-41, enacted by Ga. L. 1989, p. 1603, § 1.) 

Cross references. — Liability of volun- § 1, provides that this Act shall apply to 

teers, employees, or officers of nonprofit causes of action filed on or after the effective 

associations conducting or sponsoring sports date of the Act, including those causes of 

or safety program; liability of association, action which allege actions or inactions of 

§ 51-1-20.1. sports officials which occurred prior to the 

Editor's notes. — Ga. L. 1989, p. 1603, effective date of the Act. 

51-1-42. Limitation of liability for transportation of senior citizens by 
volunteer. 

(a) As used in this Code section, the term: 

(1) "Charitable organization" means any charitable unit of a religious 
or civic group, including those supported wholly or partially by private 
donations. 

(2) "Human service agency" means any human service unit, clinic, 
senior citizens program, congregate meal center, or day-care center for 
the elderly, whether supported wholly or partially from public funds. 

(3) "Volunteer transportation" means motor vehicle transportation 
provided by an individual under the direction, sponsorship, or supervi- 
sion of a human service agency or a charitable organization. A volunteer 
may receive reimbursement for actual expenses or an allowance to defray 
expenses of operating the vehicle used to provide transportation services 
but shall not receive compensation for his or her time. 

(b) Any person who provides volunteer transportation for senior citizens 
shall not be liable for any civil damages for any injury to such senior citizens 
arising out of or resulting from such transportation if such person was 

161 



51-1-43 TORTS 51-1-43 

acting in good faith within the scope of his or her official actions and duties 
and unless the conduct of such person amounts to willful and wanton 
misconduct. (Code 1981, § 51-1-42, enacted by Ga. L. 1991, p. 1585, § 1.) 

51-143. "Roller Skating Safety Act of 1993." 

(a) This Code section shall be known and may be cited as the "Roller 
Skating Safety Act of 1993." 

(b) As used in this Code section, the term: 

(1) "Operator" means a person or entity who owns or controls or who 
has operational responsibility for a roller skating center. 

(2) "Roller skater" means a person wearing roller skates while that 
person is in a roller skating center for the purpose of roller skating. 

(3) "Roller skating center" means a building, facility, or premises 
which provides an area specifically designed to be used for roller skating 
by the public. 

(4) "Spectator" means a person who is present in a roller skating 
center only for the purpose of observing skating activity, whether 
recreational or competitive. 

(c) Each operator of a roller skating center shall be required to: 

(1) Post the duties of roller skaters and spectators as prescribed in this 
Code section in conspicuous places; 

(2) Comply with the safety standards ordinarily accepted in the roller 
skating rink industry; 

(3) Maintain roller skating equipment and roller skating surfaces 
according to the safety standards cited in paragraph (2) of this subsec- 
tion; and 

(4) Maintain the stability and legibility of all required signs, symbols, 
and posted notices. 

(d) While in a roller skating center, each roller skater shall do all of the 
following: 

(1) Maintain reasonable control of his or her speed and course at all 
times; 

(2) Read all posted signs and warnings; 

(3) Maintain a proper lookout to avoid other roller skaters and 
objects; 

(4) Accept the responsibility for knowing the range of his or her own 
ability to negotiate the intended direction of travel while on roller skates 
and to skate within the limits of that ability; and 

162 



51-1-44 GENERAL PROVISIONS 51-1-45 

(5) Refrain from acting in a manner which may cause injury to others. 

(e) Each person who participates in roller skating in a roller skating 
center accepts the risks that are inherent in that activity insofar as the risks 
are obvious and necessary. 

(f ) A roller skater, spectator, or operator who violates the provisions of 
this Code section shall be liable in a civil action for damages for that portion 
of the loss or damage resulting from the violation. 

(g) Nothing in this Code section shall be construed to relieve an 
operator from exercising ordinary diligence in his or her operational 
responsibility. (Code 1981, § 51-1-43, enacted by Ga. L. 1993, p. 719, § 1.) 

Code Commission notes. — Pursuant to 51-1-44 and Code Section 51-1-43, as enacted 

Code Section 28-9-5, in 1993, Code Section by Ga. L. 1993, p. 1278, § 1, was redesig- 

51-1-43, as enacted by Ga. L. 1993, p. 1051, nated as Code Section 51-1-45. 
§ 1, was redesignated as Code Section 

RESEARCH REFERENCES 

C.J.S. — 65A C.J.S., Negligence, § 174. 

51-1-44. Limitation of liability for dental students. 

(a) No dental student who participates in the provision of dental care or 
dental treatment under the supervision of a medical facility, academic 
institution, or dentist, as a part of an academic curriculum leading to the 
award of a dental degree, shall be liable for any civil damages to the patient 
as a result of any act or omission in such participation, except for willful or 
wanton misconduct. 

(b) Subsection (a) of this Code section shall not be construed to affect 
or limit the liability of a medical facility, academic institution, or dentist. 
(Code 1981, § 51-1-44, enacted by Ga. L. 1993, p. 1051, § 1.) 

Cross references. — Dentists, Ch. 11, T. § 1, was redesignated as Code Section 

43. 51-1-44. 

Code Commission notes. — Pursuant to Law reviews. — For note on 1993 enact- 

Code Section 28-9-5, in 1993, Code Section ment of this section, see 10 Ga. St. U.L. Rev. 

51-1-43, as enacted by Ga. L. 1993, p. 1051, 228 (1993). 

51-1-45. Immunity of persons serving without compensation as athletic 
team physicians. 

Any person licensed to practice medicine and surgery pursuant to Article 
2 of Chapter 34 of Title 43 and including any person licensed to render 
services ancillary thereto who in good faith renders voluntary service 
without compensation as an athletic team physician, either as the team 
doctor during or in conjunction with athletic practice activities or athletic 
contests or in conducting preseason physicals for athletes, shall not be liable 

163 



51-1-46 TORTS 51-1-46 

for any civil damages as a result of any act or omission by such person in 
rendering such voluntary service or in conducting such physicals or as a 
result of any act or failure to act to provide or arrange for further medical 
treatment or care for the amateur or nonprofessional athlete. Liability for 
civil damages shall attach to any willful or wanton act or omission by such 
person committed in rendering such voluntary service or in conducting 
such physicals or as a result of any act or failure to act to provide or arrange 
for further medical treatment or care for the athlete. (Code 1981, 
§ 51-1-45, enacted by Ga. L. 1993, p. 1278, § 1.) 

Code Commission notes. — Pursuant to Law reviews. — For note on 1993 enact- 

Code Section 28-9-5, in 1993, Code Section ment of this section, see 10 Ga. St. U.L. Rev. 
51-1-43, as enacted by Ga. L. 1993, p. 1278, 230 (1993). 
§ 1, was redesignated as Code Section 
51-1-45. 

RESEARCH REFERENCES 

ALR. — Liability of school or school per- 
sonnel for injury to student resulting from 
cheerleader activities, 25 ALR5th 784. 

51-1-46. "Drug Dealer Liability Act"; purpose; definitions; actions against 
persons participating in illegal marketing of controlled substances. 

(a) This Code section shall be known and may be cited as the "Drug 
Dealer Liability Act." 

(b) The General Assembly finds and declares that every community in 
Georgia is impacted by the marketing and distribution of illegal drugs. The 
purpose of this Code section is to provide a civil remedy for damages to 
persons in a community injured as a result of illegal drug use. Those 
persons include parents, employers, insurers, governmental entities, and 
others who pay for drug treatments, as well as infants injured as a result of 
exposure to drugs in utero. This Code section will enable them to recover 
from those persons in the community who have joined the illegal drug 
market. A further purpose of this Code section is to shift, to the extent 
possible, the cost of the damage caused by the existence of the illegal drug 
market in a community to those who illegally profit from that market. 
Another purpose of this Code section is to establish the prospect of 
substantial monetary loss as a deterrent to those who have not yet entered 
into the illegal drug distribution market. 

(c) As used in this Code section, the term: 

(1) "Controlled substance" means that term as defined by paragraph 
(4) of Code Section 16-13-21. For the purpose of this Code section, the 
term "controlled substance" shall include marijuana as defined by 
paragraph (16) of Code Section 16-13-21. 

164 






51-1-46 GENERAL PROVISIONS 51-1-46 

(2) "Individual drug abuser" means an individual who uses a con- 
trolled substance that is not obtained directly from or pursuant to a valid 
prescription or order of a practitioner who is acting in the course of the 
practitioner's professional practice or which use is not otherwise autho- 
rized by state law. 

(3) "Level one participation" means participating in illegal marketing 
of less than 50 grams of a mixture containing a specified controlled 
substance or of one or more pounds or 25 or more plants, but less than 
four pounds or 50 plants, of marijuana. 

(4) "Level two participation" means participating in illegal marketing 
of 50 or more grams, but less than 225 grams, of a mixture containing a 
specified controlled substance or of four or more pounds or 50 or more 
plants, but less than eight pounds or 75 plants, of marijuana. 

(5) "Level three participation" means participating in illegal market- 
ing of 225 or more grams, but less than 650 grams, of a mixture 
containing a specified controlled substance or of eight or more pounds 
or 75 or more plants, but less than 16 pounds or 100 plants, of marijuana. 

(6) "Level four participation" means participating in illegal market- 
ing of 650 or more grams of a mixture containing a specified controlled 
substance or of 16 or more pounds or 100 or more plants of marijuana. 

(7) "Market area" means the area in which a person is presumed to 
have participated in illegal marketing of a market area controlled 
substance. 

(8) "Market area controlled substance" means a specified controlled 
substance or marijuana. 

(9) "Participate in illegal marketing" means doing any of the follow- 
ing in violation of state or federal law: 

(A) Manufacturing, distributing, or delivering or attempting or 
conspiring to manufacture, distribute, or deliver, a controlled sub- 
stance; or 

(B) Possessing or attempting or conspiring to possess a controlled 
substance with the intent to manufacture, distribute, or deliver a 
controlled substance. 

This definition shall not include any licensed practitioner who is acting in 
the course of the practitioner's professional practice. 

(10) "Person" means an individual, governmental entity, sole propri- 
etorship, corporation, limited liability company, firm, trust, partnership, 
or incorporated or unincorporated association existing under or autho- 
rized by the laws of this state, another state, or a foreign country. 

(11) "Practitioner" means that term as defined in paragraph (23) of 
Code Section 16-13-21. 

165 



51-1-46 TORTS 51-1-46 

(d) (1) A person injured by an individual drug abuser may bring an 
action under this Code section for damages against a person who 
participated in illegal marketing of the controlled substance used by the 
individual abuser. In an action brought under this Code section, partic- 
ipation in illegal marketing shall be proven by clear and convincing 
evidence. 

(2) If a plaintiff in an action under this Code section proves that the 
defendant participated in illegal marketing of a market area controlled 
substance actually used by the individual abuser who injured the plaintiff, 
the defendant is presumed to have injured the plaintiff and to have acted 
willfully and wantonly if the plaintiff is one of the following: 

(A) A parent, legal guardian, child, spouse, or sibling of the 
individual abuser; 

(B) A child whose mother was an individual abuser while the child 
was in utero; 

(C) The individual abuser's employer; or 

(D) A medical facility, insurer, governmental entity, or other legal 
entity that financially supports a drug treatment or other assistance 
program for, or that otherwise expends money or provides 
unreimbursed service on behalf of, the individual abuser. 

(e) (1) A plaintiff under paragraph (2) of subsection (d) of this Code 
section may prove that a defendant participated in illegal marketing of 
the market area controlled substance used by the individual abuser who 
injured the plaintiff by proving both of the following: 

(A) The defendant was participating in the illegal marketing of the 
market area controlled substance at the time the individual abuser 
obtained or used that market area controlled substance; and 

(B) The individual abuser obtained or used the market area con- 
trolled substance, or caused the injury, within the defendant's market 
area. 

(2) If a person participated in illegal marketing of a market area 
controlled substance, the person's market area for that controlled 
substance is the following: 

(A) For level one participation, each county in which the person 
participated in illegal marketing; 

(B) For level two participation, each market area described in 
subparagraph (A) of this paragraph plus all counties with a border 
contiguous to each of those market areas; 

166 



51-1-46 GENERAL PROVISIONS 51-1-46 

(C) For level three participation, each market area described in 
subparagraph (B) of this paragraph plus all counties with a border 
contiguous to each of those market areas; and 

(D) For level four participation, the state. 

(f ) (1) If a defendant under this Code section has a criminal conviction 
under state or federal law for an act that constitutes participation in 
illegal marketing of a controlled substance under this Code section, that 
person is conclusively presumed to have participated in illegal marketing 
of a controlled substance for the purposes of this Code section. 

(2) If a defendant is proved or presumed to have participated in illegal 
marketing of a controlled substance, that defendant is presumed to have 
participated during the two years before and the two years after the date 
of the participation or conviction, unless the defendant proves otherwise 
by clear and convincing evidence. 

(3) In addition to each county in which a defendant is proved to have 
actually participated in illegal marketing of a controlled substance, the 
defendant is presumed to have participated in each county in which the 
defendant resides, attends school, is employed, or does business during 
the period of participation. In addition to the counties in which the 
individual abuser is presumed to have obtained or used the controlled 
substance, the individual abuser is presumed to have obtained or used the 
controlled substance in each county in which the individual abuser 
resides, attends school, or is employed during the period of the individ- 
ual's abuse of that controlled substance, unless the defendant proves 
otherwise by clear and convincing evidence. 

(g) (1) A person who is entitled to a recovery under this Code section 
may recover economic, noneconomic, and exemplary damages and 
reasonable attorneys' fees and costs, including, but not limited to, 
reasonable expenses for expert testimony. 

(2) A third party shall not pay damages awarded under this Code 
section or provide a defense or money for a defense on behalf of an 
insured under a contract of insurance or indemnification. 

(h) A cause of action accrues under this Code section when a person 
who may recover has reason to know of the harm from use of an illegally 
marketed controlled substance that is the basis for the cause of action and 
has reason to know that the controlled substance used is the cause of the 
harm. 

(i) (1) A prosecuting attorney may represent the state or a political 
subdivision of the state in an action brought under this Code section. 

(2) On motion by a governmental agency involved in a controlled 
substance investigation or prosecution, an action brought under this 

167 



51-1-47 TORTS 51-1-48 

Code section shall be stayed until the completion of the investigation or 
prosecution that gave rise to the motion for a stay of the action. 

(3) An action shall not be brought under this Code section against a 
law enforcement officer or agency or a person acting in good faith at the 
direction of a law enforcement officer or agency for participation in 
illegal marketing of a controlled substance if that participation is in 
furtherance of an official investigation. 

(j) (1) Two or more persons may join in one action under this Code 
section as plaintiffs if their respective actions have at least one market 
area of illegal marketing activity in common. 

(2) Two or more persons may be joined in one action under this 
chapter as defendants if those persons are liable to at least one plaintiff. 

(3) A plaintiff need not be interested in obtaining and a defendant 
need not be interested in defending against all the relief demanded. 
Judgment may be given for one or more plaintiffs according to their 
respective rights to relief and against one or more defendants according 
to their respective liabilities. (Code 1981, § 51-1-46, enacted by Ga. L. 
1997, p. 387, § I.) 

Code Commission notes. — Pursuant to tion (e), a semicolon was substituted for a 

Code Section 28-9-5, in 1997, "deterrent" period at the end of subparagraph (B) of 

was substituted for "deterrant" in the last paragraph (2). 
sentence of subsection (b) and, in subsec- 

51-1-47. Immunity for disconnection of motor vehicle air bags. 

The manufacturers, distributors, dealers, and sellers of a motor vehicle 
and those who, on authorization and direction of the owner or lessee, 
lawfully install in a prudent and workmanlike manner a switch to turn off 
the air bag shall be immune from civil liability for any injuries caused by the 
failure of an air bag to deploy when the air bag has been disconnected, 
turned off, or otherwise disabled by the owner, lessee, or operator of the 
motor vehicle or an agent of the owner or lessee of the motor vehicle. 
(Code 1981, § 51-1-47, enacted by Ga. L. 1998, p. 1108, § 1.) 

Effective date. — This Code section be- 
came effective July 1, 1998. 

51-1-48. Diligence required in reviewing claims; nonwaivable liability is not 
created; definitions. 

(a) Any claim administrator, health care advisor, private review agent, or 
other person or entity which administers benefits or reviews or adjusts 
claims under a managed care plan shall exercise ordinary diligence to do so 

168 



51-1-49 GENERAL PROVISIONS 51-1-49 

in a timely and appropriate manner in accordance with the practices and 
standards of the profession of the health care provider generally. Notwith- 
standing any other provision of law to the contrary, any injury or death to 
an enrollee resulting from a want of such ordinary diligence shall be a tort 
for which a recovery may be had against the managed care entity offering 
such plan, but no recovery shall be had for punitive damages for such tort. 

(b) The provisions of this Code section may not be waived, shifted, or 
modified by contract or agreement and responsibility therefor shall be a 
duty which shall not be delegated. Any effort to waive, modify, delegate, or 
shift liability for a breach of the duty provided by this Code section, through 
a contract for indemnification or otherwise, shall be invalid. 

(c) This Code section shall not create any liability on the part of an 
employer of an enrollee or that employer's employees, unless the employer 
is the enrollee's managed care entity. This Code section shall not create any 
liability on the part of an employee organization, a voluntary employee 
beneficiary organization, or a similar organization, unless such organization 
is the enrollee's managed care entity and makes coverage determinations 
under a managed care plan. 

(d) As used in this Code section and in Code Section 51-1-49, the terms 
"claim administrator," "enrollee," "health care advisor," and "private 
review agent" shall be defined as set forth in Chapter 46 of Tide 33 except 
that "enrollee" shall include the enrollee's eligible dependents; "managed 
care entity" and "managed care plan" shall be defined as set forth in Code 
Section 33-20A-3; and "independent review" means a review pursuant to 
Article 2 of Chapter 20A of Title 33, the "Patient's Right to Independent 
Review Act." (Code 1981, § 51-1-48, enacted by Ga. L. 1999, p. 350, § 1.) 

Effective date. — This Code section be- 1, 1999, and shall be applicable to any 

came effective July 1, 1999. contract, policy, or other agreement of a 

Code Commission notes. — Pursuant to managed care plan or health maintenance 

Code Section 28-9-5, in 1999, punctuation organization if such contract, policy, or 

was revised in subsection (d). agreement provides for health care services 

Editor's notes. — Ga. L. 1999, p. 350, § 4, or reimbursement therefor and is issued, 

not codified by the General Assembly, pro- issued for delivery, delivered, or renewed on 

vides: "For purposes of certifying indepen- or after July 1, 1999." 

dent review organizations by the Health Law rev iews. — For annual survey article 

Planning Agency, or its successor agency, this discussing developments in insurance law, 

Act shall become effective upon its approval see 51 Mercer l. Rev. 313 (1999). 

by the Governor or upon its becoming law For note on 1999 enactment of this sec - 

without such approval. For all other pur- ^ see lfi Ga St ^ L Rey m {mg) 
poses, this Act shall become effective on July 

51-1-49. Requirements for maintaining cause of action against managed 
care entity; notice; independent review. 

(a) No person may maintain a cause of action pursuant to Code Section 
51-1-48 unless the affected enrollee or the enrollee's representative: 

169 



51-1-49 



TORTS 



51-1-49 



( 1 ) Has exhausted the grievance procedure provided for under Code 
Section 33-20A-5 and before instituting the action: 

(A) Gives written notice of intent to file suit to the managed care 
entity; and 

(B) Agrees to submit the claim to independent review if required 
under subsection (c) of this Code section; or 

(2) Has filed a pleading alleging in substance that: 

(A) Harm to the enrollee has already occurred for which the 
managed care entity may be liable; and 

(B) The grievance procedure or independent review is not timely or 
otherwise available or would not make the enrollee whole, 

in which case the court, upon motion by the managed care entity, shall 
stay the action and order such grievance procedure or independent 
review to be conducted and exhausted. 

(b) The notice required by paragraph (1) of subsection (a) of this Code 
section must be delivered or mailed to the managed care entity not fewer 
than 30 days before the action is filed. 

(c) The managed care entity receiving notice of intent to file suit may 
obtain independent review of the claim, if notice of a request for review is 
mailed or delivered to the Health Planning Agency, or its successor agency, 
and the affected enrollee within ten days of receipt of the notice of intent 
to file suit (Code 1981, § 51-1-49, enacted by Ga. L. 1999, p. 350, § 1.) 



Effective date. — This Code section be- 
came effective July 1, 1999. 

Editor's notes. — Ga. L. 1999, p. 350, § 4, 
not codified by the General Assembly, pro- 
vides: "For purposes of certifying indepen- 
dent review organizations by the Health 
Planning Agency, or its successor agency, this 
Act shall become effective upon its approval 
by the Governor or upon its becoming law 
without such approval. For all other pur- 
poses, this Act shall become effective on July 



1, 1999, and shall be applicable to any 
contract, policy, or other agreement of a 
managed care plan or health maintenance 
organization if such contract, policy, or 
agreement provides for health care services 
or reimbursement therefor and is issued, 
issued for delivery, delivered, or renewed on 
or after July 1, 1999." 

Law reviews. — For note on 1999 enact- 
ment of this section, see 16 Ga. St. U.L. Rev. 
151 (1999). 



170 



51-2-1 



IMPUTABLE NEGLIGENCE 

CHAPTER 2 



51-2-1 



IMPUTABLE NEGLIGENCE 



Sec. 
51-2-1. 



51-2-2. 

51-2-3. 
51-2-4. 



Basis for imputation of negli- 
gence; fault of parents or custo- 
dians not imputable to child. 
Liability for torts of spouse, 
child, or servant in certain in- 
stances. 

Liability for malicious acts of mi- 
nor child. 

Liability for torts of independent 
employee. 



Sec. 
51-2-5. 

51-2-6. 



51-2-7. 



Liability for negligence of con- 
tractor. 

Liability of owner or keeper of 
dog for damage done to livestock 
while off his or her premises. 
Liability of owner or keeper of 
vicious or dangerous animal for 
injuries caused by animal. 



RESEARCH REFERENCES 



ALR. — State or local governmental unit's 
liability for injury to private highway con- 
struction worker based on its own negli- 
gence, 29 ALR4th 1188. 



Liability of hospital or sanitarium for neg- 
ligence of physician or surgeon, 51 ALR4th 
235. 



51-2-1. Basis for imputation of negligence; fault of parents or custodians 
not imputable to child. 

(a) For the negligence of one person to be properly imputable to 
another, the one to whom it is imputed must stand in such a relation or 
privity to the negligent person as to create the relation of principal and 
agent. 

(b) In an action by an infant, the fault of the parent or of custodians 
selected by the parents is not imputable to the child. (Civil Code 1895, 
§ 2902; Civil Code 1910, § 3475; Code 1933, § 105-205.) 

History of section. — The language of this Cross references. — Agency generally, Ch . 



section is derived in part from the decisions 
in East Tenn., Va. & Ga. Ry. v. Markens, 88 
Ga. 60, 13 S.E. 855 (1891); Atlanta 8c C. 
Air-Line Ry. v. Gravitt, 93 Ga. 369, 20 S.E. 550 
(1894). 



6, T. 10. 

Law reviews. — For comment on South- 
ern Ry. v. Garland, 75 Ga. App. 98, 41 S.E.2d 
925 (1947), see 10 Ga. B.J. 102 (1947). 



JUDICIAL DECISIONS 



Analysis 



General Consideration 

Parent's Negligence Not Imputed to Child 



171 



51-2-1 



TORTS 



51-2-1 



General Consideration 

Principal is responsible for torts of agent 
when agent is acting on behalf of principal. 

DeDaviess v. U-Haul Co., 154 Ga. App. 124, 
267 S.E.2d 633 (1980). 

Agent himself must be liable for negli- 
gence to be imputed to principal. — One 

charged with negligence solely on the 
ground of respondeat superior will be held 
liable only if, and to the extent that, the 
agent who committed the tortious act is 
himself liable. Redd v. Peters, 100 Ga. App. 
316, 111 S.E.2d 132 (1959). 

Ratification doctrine inapplicable to ac- 
tion of unidentified patron. — The doctrine 
of ratification was inapplicable in an action 
for injuries at defendant's nightclub from 
actions of a patron, where the evidence 
showed that the unidentified patron acted in 
an individual capacity and not as one hold- 
ing himself out as acting in the name of or 
under the authority of defendant. Ginn v. 
Renaldo, Inc., 183 Ga. App. 618, 359 S.E,2d 
390 (1987). 

Mother's negligence not bar to father's 
recovery for wrongful death of child. — In a 
suit brought by parents against the mother's 
employer for the wrongful death of twin 
infant girls, allegations of contributory neg- 
ligence or assumption of the risk by the 
mother would not defeat recovery for the 
father. Fulford v. ITT Rayonier, Inc., 676 F. 
Supp. 252 (S.D. Ga. 1987). 

When negligence of driver imputable to 
passenger. — Under this section negligence 
by the driver of a private vehicle, contribut- 
ing to the injury of a person riding therein 
by invitation, is not imputable to the injured 
person, unless it is made to appear that the 
injured person owned the vehicle, or had 
some agency or concern in its operation, 
such as that the driver was his servant or 
agent, or that the two were at the time 
engaged in a joint enterprise for their com- 
mon benefit, or unless he otherwise had 
some right, or was under some duty, to 
control or influence the driver's conduct, 
such as might arise from the obvious or 
known incompetency of the driver, resulting 
from drunkenness or other cause. Metropol- 
itan St. R.R. v. Powell, 89 Ga. 601, 16 S.E. 118 
(1892); Roach v. Western 8c A.R.R., 93 Ga. 
785, 21 S.E. 67 (1894); Southern Ry. v. King, 
128 Ga. 383, 57 S.E. 687 (1907); Adamson v. 
McEwen, 12 Ga. App. 508, 77 S.E. 591 



(1913); Seaboard Air-Line Ry. v. Barrow, 18 
Ga. App. 261, 89 S.E. 283 (1916); Wilkinson 
v. Bray, 27 Ga. App. 277, 108 S.E. 133 (1921); 
Mayor of Savannah v. Waters, 27 Ga. App. 
813, 109 S.E. 918 (1921). 

Where a husband, not acting as agent of 
his wife, operates an automobile not belong- 
ing to the wife, but under her command, his 
negligence is not imputable to the wife. 
Holloway v. Mayor of Milledgeville, 35 Ga. 
App. 87, 132 S.E. 106 (1926). 

Where a wife is merely accompanying her 
husband as a guest in an automobile driven 
by him, and a collision occurs, which might 
in part be attributable to the negligence of 
the husband as driver of the automobile, any 
such negligence on his part is not imputable 
to the wife. Randall Bros. v. Duckett, 53 Ga. 
App. 250, 185 S.E. 394 (1936). 

In Georgia, the negligence of a host driver 
of a motor vehicle cannot be imputed to his 
guest passenger unless the passenger stands 
in such a relation of privity to his negligent 
host driver as to create the relation of prin- 
cipal and agent. Jones v. Petroleum Carrier 
Corp., 483 F.2d 1369 (5th Cir. 1973). 

Passenger not liable for driver's conduct 
absent same right to direct and control. — In 
order for the occupants of a conveyance to 
be engaged in a joint enterprise, under the 
rules of law pertaining to negligence, there 
must be not only a joint interest in the 
objects and purposes of the undertaking, but 
also an equal right, express or implied, to 
direct and control the conduct of each other 
in the operation of the conveyance. Holland 
v. Boyett, 212 Ga. 458, 93 S.E.2d 662 (1956). 

Liability of transferee of corporate stock. 
— This section does not, either by its terms 
or by implication, create a direct cause of 
action in tort against the transferee of cor- 
porate stock for the transferor corporation's 
negligence in a completely separate transac- 
tion. Brown Transp. Corp. v. Street, 194 Ga. 
App. 717, 391 S.E.2d 699 (1990). 

Jury instructions. — An instruction giving 
this general legal rule will not be accounted 
erroneous merely on the ground that the 
jury is not also informed as to what facts and 
circumstances would constitute the 
principal-agent relation. Jones Mercantile 
Co. v. Copeland, 54 Ga. App. 647, 188 S.E. 
586 (1936). 

Cited in Watson v. Loughran, 1 12 Ga. 837, 
38 S.E. 82 (1901); English v. Georgia Power 



172 



51-2-1 



IMPUTABLE NEGLIGENCE 



51-2-1 



Co., 66 Ga. App. 363, 17 S.E.2d 891 (1941); 
Wilson v. Harrell, 87 Ga. App. 793, 75 S.E.2d 
436 (1953); Charles v. Raine, 99 Ga. App. 1, 
107 S.E.2d 566 (1959); Saunders v. Vikers, 
116 Ga. App. 733, 158 S.E.2d 324 (1967); 
Shirley v. Woods, 118 Ga. App. 851, 165 
S.E.2d 891 (1968); Hartz v. United States, 
415 F.2d 259 (5th Cir. 1969); Whittle v. 
Johnston, 124 Ga. App. 785, 186 S.E.2d 129 
(1971); Brock v. Patterson, 128 Ga. App. 257, 
196 S.E.2d 351 (1973); Allstate Ins. Co. v. 
Harris, 133 Ga. App. 567, 211 S.E.2d 783 
(1974); Garmon v. Delta Air Lines, 139 Ga. 
App. 152, 227 S.E.2d 821 (1976); Strickland 
v. ITT Rayonier, Inc., 162 Ga. App. 317, 291 
S.E.2d 396 (1982); Adams v. Wright, 162 Ga. 
App. 550, 293 S.E.2d 446 (1982); Davis v. 
Stone Mt. Mem. Ass'n, 179 Ga. App. 486, 347 
S.E.2d 317 (1986); Commerce Properties, 
Inc. v. Linthicum, 209 Ga. App. 853, 434 
S.E.2d 769 (1993); Housing Auth. of Atlanta 
v.Jefferson, 225 Ga. App. 60, 476 S.E.2d 831 
(1996). 

Parent's Negligence Not Imputed to Child 

When negligence of parent or custodian 
not imputable to child. — The negligence of 
a parent or of a custodian selected by a 
parent, is not imputable to a child when the 
child is itself the plaintiff. Ferguson v. Co- 
lumbus & Rome Ry., 77 Ga. 102 (1886); 
Herrington v. Mayor of Macon, 125 Ga. 58, 
54 S.E. 71 (1906); Crook v. Foster, 142 Ga. 
715, 83 S.E. 670 (1914); Williams v. Jones, 26 
Ga. App. 558, 106 S.E. 616 (1921). 

Negligence of parent in driving automo- 
bile in which child is riding cannot be im- 
puted to child. Fallaw v. Hobbs, 113 Ga. App. 
181, 147 S.E.2d 517 (1966). 

Any contributory negligence by the hus- 
band driver of the automobile, not being 
imputable to the mother as a "guest," she 
having no right of control or direction over 
the movements of the car, was not imputable 
to the plaintiff children, since their right of 
action arose from her death and did not 
come through the husband. Pollard v. 
Gorman, 52 Ga. App. 127, 182 S.E. 678 
(1935). 

Where the plaintiff was a six-year old 
child, riding as a guest in the automobile 
which collided with the defendant's railroad 
car at the crossing, and was under no duty, 
and had no right, to control or influence the 
conduct of the driver of the automobile, any 



negligence of the driver that contributed to 
causing the collision was not imputable to 
the child. Adanta, B. & C. Ry. v. Loftin, 67 
Ga. App. 601, 21 S.E.2d 290 (1942). 

Mother's negligence in failing to keep 
child off dangerous sidewalk not imputed. — 
In an action by a child, suing by his next 
friend, for a personal injury alleged to have 
arisen from the negligence of a municipal 
corporation in leaving one of its sidewalks in 
a dangerous condition, any negligence on 
the part of his mother in failing to keep him 
from danger could not be imputed to the 
plaintiff himself. Wallace v. Adams, 47 Ga. 
App. 144, 169 S.E. 852 (1933). 

Parent's knowledge of defective condition 
of premises is not imputable to child. — The 
knowledge of the tenant of the defective 
condition of the premises is not imputable 
to the child of the tenant and such child may 
recover for injury caused by the defective 
condition of the premises, if the child him- 
self is in the exercise of ordinary care at the 
time of the injury. Wallace v. Adams, 47 Ga. 
App. 144, 169 S.E. 852 (1933). 

Recovery is barred where negligence of 
parent proximately caused child's injury. — 
The negligence of the parent, not imputable 
to the child, cannot be used as a bar or 
defense to the defendant's causative negli- 
gence. However, where the negligence of the 
parent is the sole proximate cause of the 
injury to the child, the child cannot recover 
from the defendant. Stroud v. Willingham, 
126 Ga. App. 156, 190 S.E.2d 143 (1972). 

No recovery if defendant's negligence is 
not proximate cause. — Where the sole 
proximate cause of an injury to the plaintiff 
is the negligence of some one other than the 
defendant, there can be no recovery against 
the defendant, although such negligence 
may not be imputable to plaintiff and the 
defendant may have been guilty of negli- 
gence. Teppenpaw v. Blaylock, 126 Ga. App. 
576, 191 S.E.2d 466 (1972). 

No need to plead affirmative care by par- 
ent. — The overruling of defendant's mo- 
tion to dismiss, which contended that peti- 
tion brought by five-year old by his next 
friend to recover damages for personal inju- 
ries was defective in that it failed to show that 
either parent of the plaintiff exercised any 
care or control over the minor child, was not 
error. Fulcher v. Rowe, 78 Ga. App. 254, 50 
S.E.2d378 (1948). 



173 



51-2-1 



TORTS 



51-2-1 



Parent's Negligence Not Imputed to 
Child (Cont'd) 

Death of child in motel swimming pool. — 
In a wrongful death action arising out of the 
death of the plaintiffs' three-year-old son in a 
motel swimming pool, the child was incapa- 



ble of contributory negligence, while any 
negligence on the part of the parents was 
not imputable to the child. Therefore, if the 
parents were barred from recovery, they 
were barfed by their own negligence or 
assumption of risk. English v. 1st Augusta 
Ltd., 614 F. Supp. 1406 (S.D. Ga. 1985). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 57B Am. Jur. 2d, Negli- 
gence, §§ 1752 et seq., 1786 et seq., 1803, 
1807, 1812, 1813. 

C.J.S. — 65A C.J.S., Negligence, § 157 et 
seq. 

ALR. — Automobiles: liability of parent 
for injury to child's guest by negligent oper- 
ation of car, 2 ALR 900; 88 ALR 590. 

Imputability to rescuer of antecedent neg- 
ligence of rescued person, 5 ALR 206. 

Liability for negligence of chauffeur fur- 
nished with a car hired for an extended 
period, 8 ALR 484. 

Imputing negligence of parent or custo- 
dian to child in action by or on behalf of 
child for personal injury, 15 ALR 414. 

Liability of husband for independent tort 
of wife, 20 ALR 528; 27 ALR 1218; 59 ALR 
1468. 

Liability of employer for injuries by auto- 
mobile while being driven by or for salesman 
or collector, 54 ALR 627; 107 ALR 419. 

Liability of owner for negligence of one 
permitted by former's servant or member of 
his family to drive automobile, 54 ALR 851; 
98 ALR 1043; 134 ALR 974. 

Liability of person acting under authority 
of one spouse for injury to other spouse, 57 
ALR 755. 

Negligence of driver of automobile as 
imputed to member of joint enterprise, 62 
ALR 440; 85 ALR 630. 

When occupants of automobile deemed 
to be engaged in joint enterprise so that 
negligence of one is imputable to other, 80 
ALR 312; 95 ALR 857. 

Doctrine of ratification invoked to charge 
one person with responsibility for the negli- 
gence of another not authorized to act for 
him, 85 ALR 915. 

Negligence of driver of automobile as 
imputable to passenger, 90 ALR 630; 123 
ALR 1171. 

Liability of bank for losses incurred on 
loans or investments made on recommenda- 



tion of its officers or employees, 113 ALR 
246. 

Negligence or contributory negligence of 
parent in intrusting child to custody of an- 
other child, 123 ALR 147. 

Liability of owner under family purpose 
doctrine for injuries by automobile while 
being used by member of his family, 132 
ALR 981. 

Right to bring separate actions against 
master and servant, or principal and agent, 
to recover for negligence of servant or 
agent, where master's or principal's only 
responsibility is derivative, 135 ALR 271. 

Liability of attorney or law firm for con- 
duct of employee or member of firm in 
connection with investment of funds of cli- 
ent, 136 ALR 1110. 

Imputation of driver's negligence to pas- 
senger, 163 ALR 697. 

Automobile owner's common-law liability 
for negligence in entrusting car to known 
incompetent, reckless, or inexperienced per- 
son as affected by statute limiting owner's 
liability to use within terms of consent, 163 
ALR 1418. 

Negligence of automobile passenger as to 
lookout or other precaution as affecting 
question of negligence or contributory neg- 
ligence of driver, 165 ALR 596. 

Contributory negligence of driver of mo- 
tor vehicle as imputable to owner under 
statute making owner responsible for negli- 
gence of driver, 11 ALR2d 1437. 

Liability of municipality for injury or dam- 
age from explosion or burning of substance 
stored by third person under municipal per- 
mit, l7ALR2d683. 

Liability under respondeat superior doc- 
trine for acts of operator furnished with 
leased machine or motor vehicle, 17 ALR2d 
1388. 

Dealer's liability for negligent operation 
of car by prospective purchaser or one acting 
for him, 31 ALR2d 1445. 



174 



51-2-2 



IMPUTABLE NEGLIGENCE 



51-2-2 



Employer's liability for negligence of em- 
ployee in piloting his own airplane in em- 
ployer's business, 46 ALR2d 1050. 

Liability of person permitting child to 
have gun, or leaving gun accessible to child, 
for injury inflicted by the latter, 68 ALR2d 
782. 

Liability of employer for injury to wife or 
child or employee through latter's negli- 
gence, 1 ALR3d 677. 

Products liability: manufacturer's respon- 
sibility for defective component supplied by 
another and incorporated in product, 3 
ALR3d 1016. 

Master's liability for injury to or death of 
person, or damage to property, resulting 
from fire allegedly caused by servant's smok- 
ing, 20 ALR3d 893. 

Contributory negligence of spouse or 
child as bar to recovery of collateral damages 
suffered by other spouse or parent, 21 
ALR3d 469. 

Liability of owner or operator of power 
lawnmower for injuries resulting to third 
person from its operation, 25 ALR3d 1314. 

Liability of hospital for negligence of 
nurse assisting operating surgeon, 29 ALR3d 
1065. 

Railroad's liability for injury to or death of 
child on moving train other than as paying 
or proper passenger, 35 ALR3d 9. 

Imputation of contributory negligence of 
servant or agent to master or principal, in 
action by master or principal against another 
servant or agent for negligence in connec- 
tion with his duties, 57 ALR3d 1226. 

Permitting child to walk to school unat- 
tended as contributory negligence of par- 
ents in action for injury to or death of child, 
62 ALR3d 541. 

Liability of owner of powerboat for injury 
or death allegedly caused by one permitted 
to operate boat by owner, 71 ALR3d 1018. 

Liability of one hiring private investigator 
or detective for tortious acts committed in 
course of investigation, 73 ALR3d 1175. 



Carrier's liability for injury or death of 
infant passenger as affected by fact that child 
was in custody of parent or other adult, 74 
ALR3d 1171. 

Landlord's liability to tenant's child for 
personal injuries resulting from defects in 
premises, as affected by tenant's negligence 
with respect to supervision of child, 82 
ALR3d 1079. 

Student-driver's negligence as imputable 
to teacher-passenger, 90 ALR3d 1329. 

Fact that passenger in vehicle is owner as 
affecting right to recover from driver for 
injuries to, or death of, passenger incurred 
in consequence of driver's negligence, 21 
ALR4th 459. 

Negligence of one parent contributing to 
injury or death of child as barring or reduc- 
ing damages recoverable by other parent for 
losses suffered by other parent as result of 
injury or death of child, 26 ALR4th 396. 

Liability of hotel or motel operator for 
injury to guest resulting from assault by third 
party, 28 ALR4th 80. 

Liability of private citizen or his employer 
for injury or damage to third person result- 
ing from firing of shots at fleeing criminal, 
29 ALR4th 144. 

Fact that passenger in negligently oper- 
ated motor vehicle is owner as affecting 
passenger's liability to or rights against third 
person — modern cases, 37 ALR4th 565. 

Construction and effect of statutes which 
make parent, custodian, or other person 
signing minor's application for vehicle oper- 
ator's license liable for licensee's negligence 
or willful misconduct, 45 ALR4th 87. 

Liability for personal injury or property 
damage caused by unauthorized use of auto- 
mobile which had been parked with keys 
removed from ignition, 70 ALR4th 276. 

Liability of doctor or other health practi- 
tioner to third party contracting contagious 
disease from doctor's patient, 3 ALR5th 1. 

Secondary smoke as battery, 46 ALR5th 
813. 



51-2-2. Liability for torts of spouse, child, or servant in certain instances. 

Every person shall be liable for torts committed by his wife, his child, or 
his servant by his command or in the prosecution and within the scope of 
his business, whether the same are committed by negligence or voluntarily. 
(Orig. Code 1863, § 2904; Code 1868, § 2910; Code 1873, § 2961; Code 



175 



51-2-2 



TORTS 



51-2-2 



1882, § 2961; Civil Code 1895, § 3817; Civil Code 1910, § 4413; Code 1933, 
§ 105-108.) 



History of section. — The language of this 
section is derived in part from the decisions 
in Curtis v. Ashworth, 165 Ga. 782, 142 S.E. 
1 1 1 (1928) ; Dodgen v. DeBorde, 43 Ga. App. 
131, 158 S.E. 64 (1931). 

Law reviews. — For article, "Motorboat 
Collisions and the Family Purpose Doc- 
trine," see 2 Ga. St B.J. 473 (1966). For 
article analyzing the trend in this country 
toward no-fault liability, see 25 Emory L.J. 
163 (1976). 

For note, "Effect of Verdict for Employee 
in Joint Action Against Employer and Em- 
ployee," see 3 Mercer L. Rev. 298 (1952). 
For note discussing the doctrine of 
respondeat superior, see 2 Ga. St. B.J. 478 
(1966). For note discussing the family pur- 
pose car doctrine as an extension of the 
principle of respondeat superior, see 3 Ga. 
St. BJ. 112 (1966). For note discussing gov- 
ernmental immunity from tort liability in 
Georgia, see 5 Ga. St B.J. 494 (1969). For 
note, "Tort Liability in Georgia for the Crim- 
inal Acts of Another," see 18 Ga. L. Rev. 361 
(1984). 

For comment on Durden v. Maddox, 73 
Ga. App. 491, 37 S.E.2d 219 (1946), see 9 Ga. 
B.J. 98 (1946). For comment on Cohen v. 
Whiteman, 75 Ga. App. 286, 43 S.E.2d 184 
(1947), see 10 Ga. BJ. 222 (1947). For 
comment on Woolf v. Colonial Stores, Inc., 
76 Ga. App. 565, 46 S.E.2d 620 (1948), see 
11 Ga. BJ. 70 (1948). For comment regard- 
ing joinder of master and servant as parties 
defendant, in light of Southern Ry. v. Gar- 
land, 76 Ga. App. 729, 47 S.E.2d 93 (1948), 
see 11 Ga. BJ. 226 (1948). For comment on 
Colonial Stores, Inc. v. Sasser, 79 Ga. App. 



604, 54 S,E.2d 719 (1949), see 12 Ga. BJ. 215 
(1949). For comment on Davidson v. Harris, 
Inc., 81 Ga. App. 665, 59 S.E.2d 551 (1950), 
see 13 Ga. BJ. 229 (1950). For comment on 
Radio Cabs, Ltd. v. Tolbert, 86 Ga. App. 181, 
70 S.E.2d 260 (1952), see 15 Ga. BJ. 226 
(1952). For comment on Henson v. Garnto, 
88 Ga. App. 320, 76 S.E.2d 636 (1953), 
regarding recovery by wife under doctrine of 
respondeat superior for injuries caused by 
husband, see 5 Mercer L. Rev. 209 (1953). 
For comment discussing liability of husband 
to wife for tort caused by their minor child, 
in light of Silverman v. Silverman, 145 Conn. 
663, 145 A.2d 826 (1958), see 10 Mercer L. 
Rev. 339 (1959). For comment on Myrick v. 
Alexander, 101 Ga. App. 1, 112 S.E.2d 697 
(1960), see 22 Ga. BJ. 570 (1960). For 
comment on Marques v. Ross, 105 Ga. 133, 
123 S.E.2d 412 (1961), and application of 
the family purpose doctrine, see 14 Mercer 
L. Rev. 297 (1962). For comment on 
Ferguson v. Gurley, 105 Ga. App. 575, 125 
S.E.2d 218 (1962), see 25 Ga. BJ. 209 
(1962). For comment on Emory Univ. v. 
Porter, 103 Ga. App. 752, 121 S.E.2d 668 
(1961), as to hospital's liability for the neg- 
ligence of a physician, see 14 Mercer L. Rev. 
467 (1963). For comment on Porter v. 
Patterson, 107 Ga. App. 64, 129 S.E.2d 70 
(1962), see 26 Ga. BJ. 184 (1963). For 
comment on Ellenberg v. Pinkerton's, Inc., 
125 Ga. App. 648, 188 S.E.2d 911 (1972), 
holding employer defendant may not use 
independent contractor defense to invasion 
of privacy suit resulting from actions of 
investigator working in his behalf, see 9 Ga. 
St. BJ. 519 (1973). 



JUDICIAL DECISIONS 



Analysis 

General Consideration 
Torts of Spouse 
Torts of Child 
Vicarious Liability 
Family Purpose Doctrine 

1. General Principles 

2. Use by Spouse 

3. Use by Child 

4. Use by Other 

5. Procedure 



176 



51-2-2 



IMPUTABLE NEGLIGENCE 



51-2-2 



Torts of Servant 

1. Definitions and General Scope 

2. Basis of Master's Liability 

3. Scope of Employment 

4. Servant's Intentional Torts 

5. Principal— Agent Liability 

6. Independent Contractors 

7. Borrowed Servants 

8. Joint and Several Liability 

9. Pleading and Practice 

10. Jury Instructions 

11. Jury Questions 

Torts of Servant — Specific Cases 

1. Automobiles 

2. Corporations 

3. Railroads 

4. Retail Sales 

5. Miscellaneous 



General Consideration 

Cited in Peeples v. Brunswick & A.R.R., 60 
Ga. 281 (1878); Louisville 8c N.R.R. v. 
Blackmon, 3 Ga. App. 80, 59 S.E. 341 (1907); 
Seaboard Air-Line Ry. v. Arrant, 17 Ga. App. 
489, 87 S.E. 714 (1916); Fisher v. Georgia N. 
Ry., 35 Ga. App. 733, 134 S.E. 827 (1926); 
Massachusetts Cotton Mills v. Byrd, 38 Ga. 
App. 241, 143 S.E. 610 (1928); SpauldingOil 
Mill, Inc. v. Mayes, 48 Ga. App. 613, 172 S.E. 
734 (1934); Harmon v. Southeastern Com- 
press & Whse. Co., 48 Ga. App. 392, 172 S.E. 
748 (1934); Personal Fin. Co. v. Loggins, 50 
Ga. App. 562, 179 S.E. 162 (1935); Holland 
v. Bullock, 55 Ga. App. 605, 190 S.E. 877 
(1937); Minter v. Kent, 62 Ga. App. 265, 8 
S.E.2d 109 (1940); Goldstein v. Johnson, 64 
Ga. App. 31, 12 S.E.2d 92 (1940); Smith v. 
Colonial Stores, Inc., 72 Ga. App. 186, 33 
S.E.2d 360 (1945); Lewis v. Miller Peanut 
Co., 77 Ga. App. 380, 49 S.E.2d 221 (1948); 
Davidson v. Harris, 79 Ga. App. 788, 54 
S.E.2d 290 (1949); Shepherd Constr. Co. v. 
Vaughn, 88 Ga. App. 285, 76 S.E.2d 647 
(1953); Southard v. Hitchcock, 89 Ga. App. 
322, 79 S.E.2d 342 (1953); Ledman v. Calvert 
Iron Works, Inc., 92 Ga. App. 733, 89 S.E.2d 
832 (1955); Young v. Kickliter, 213 Ga. 42, 96 
S.E.2d 605 (1957); Hines v. Bell, 104 Ga. 
App. 76, 120 S.E.2d 892 (1961); Ford Motor 
Co. v. Williams, 219 Ga. 505, 134 S.E.2d 32 
(1963); Parrott v. Fletcher, 113 Ga. App. 45, 
146 S.E.2d 923 (1966); Parrott v. Edwards, 
113 Ga. App. 422, 148 S.E.2d 175 (1966); 
Saunders v. Vikers, 116 Ga. App. 733, 158 



S.E.2d 324 (1967); Smallwood v. Hall 
County, 116 Ga. App. 720, 158 S.E.2d 443 
(1967); Dettmering v. United States, 308 F. 
Supp. 1185 (N.D. Ga. 1969); Stewart v. Rob- 
erts, 132 Ga. App. 700, 209 S.E.2d 119 
(1974); Larymore v. Brush & Collier Bldrs., 
134 Ga. App. 863, 216 S.E.2d 683 (1975); 
Grant v.Jones, 168 Ga. App. 690, 310 S.E.2d 
272 (1983); Cummings v. Walsh Constr. Co., 
561 F. Supp. 872 (S.D. Ga. 1983); Smith v. 
Hawks, 182 Ga. App. 379, 355 S.E.2d 669 
(1987); Coley v. Evans Mem. Hosp., 192 Ga. 
App. 423, 385 S.E.2d 100 (1989); Crowe v. 
Fleming, 749 F. Supp. 1135 (S.D. Ga. 1990); 
Gaskins v. Gaona, 209 Ga. App. 322, 433 
S.E.2d 408 (1993); Knight v. Wal-Mart Stores, 
Inc., 889 F. Supp. 1532 (S.D. Ga. 1995); 
Waters v. Steak & Ale of Ga., Inc., 241 Ga. 
App. 709, 527 S.E.2d 592 (2000). 

Torts of Spouse 

Husband is not liable for torts of his wife 
merely because of the relationship. Durden 
v. Maddox, 73 Ga. App. 491, 37 S.E.2d 219 
(1946). 

Tort must be based on spouse's direction. 
— In this state a husband now is liable for 
the torts of his wife only when they are 
committed by her in the capacity of agent; 
and where it is sought to hold the husband 
liable for some wrong committed by her 
within the scope of her agency, a suit may be 
maintained against the husband without 
joining the wife as a party defendant. Miller 
v. Straus, 38 Ga. App. 781, 145 S.E. 501 
(1928). 



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Torts of Spouse (Cont'd) 

In Georgia, husband is not liable for the 
torts of his wife, except as such liability may 
arise by reason of the commission of the act 
"by his command or in the prosecution and 
within the scope of his business." Farrar v. 
Farrar, 41 Ga. App. 120, 152 S.E. 278 (1930). 

Facts must show agency relationship. — 
The marital relationship alone will not, in 
view of the modification of the common-law 
rule of liability in this state, support an 
action against a husband for the tort of his 
wife in the absence of facts showing an 
agency relationship. Shelton v. Doster, 99 
Ga. App. 863, 109 S.E.2d 862 (1959). 

Husband not liable for independent tort 
of wife. — A husband, under this section, 
and existing statutes enlarging the rights 
and functions of married women, is not 
liable for an independent tort committed by 
the wife in the operation of an automobile 
not furnished by him to the wife, and not 
used in the husband's business, but operated 
without his consent, command or participa- 
tion in any way. Shelton v. Doster, 99 Ga. 
App. 863, 109 S.E.2d 862 (1959). 

Not necessary to join husband as defen- 
dant. — In a suit against a married woman 
for a tort, whether the husband would or 
would not be liable, under the doctrine 
respondeat superior, it is not necessary that 
the husband be joined as a defendant in the 
action. Farrar v. Farrar, 41 Ga. App. 120, 152 
S.E. 278 (1930). 

Torts of Child 

Causes of action against parents of minor 
tort-feasors are rooted in common law and 
are predicated on something more than 
mere parent-child relationship. Scarboro v. 
Lauk, 133 Ga. App. 359, 210 S.E.2d 848 
(1974); Muse v. Ozment, 152 Ga. App. 896, 
264 S.E.2d 328 (1980). 

Liability of parent for injury committed by 
child is governed by ordinary principles of 
liability of principal for the acts of his agent, 
or a master for his servant. Stanford v. Smith, 
173 Ga. 165, 159 S.E. 666, answer conformed 
to, 43 Ga. App. 747, 160 S.E. 93 (1931); 
Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167, 
answer conformed to, 52 Ga. App. 262, 183 
S.E. 98 (1935); Corley v. Lewless, 227 Ga. 
745, 182 S.E.2d 766 (1971); Scarboro v. 
Lauk, 133 Ga. App. 359, 210 S.E.2d 848 



(1974); Muse v. Ozment, 152 Ga. App. 896, 
264S.E.2d328 (1980). 

Parents are not liable in damages for the 
torts of their minor children merely because 
of the parent-child relationship; when liabil- 
ity exists it is based on a principal-agent or a 
master-servant relationship where the negli- 
gence of the child is imputed to the parent, 
or it is based on the negligence of the parent 
in some factual situation such as allowing the 
child to have unsupervised control of a 
dangerous instrumentality. Hill v. Morrison, 
160 Ga. App. 151, 286 S.E.2d 467 (1981). 

Father not liable for tort of his minor 
child, with which he was in no way con- 
nected, which he did not ratify, and from 
which he did not derive any benefit. 
Chastain v. Johns, 120 Ga. 977, 48 S.E. 343, 
66 L.R.A. 958 (1904); Schumer v. Register, 
12 Ga. App. 743, 78 S.E. 731 (1913). 

So far as the liability of a father is con- 
cerned, the tort must have been committed 
by the child by his command or in the 
prosecution and within the scope of his 
business. The father is liable for the child's 
torts only upon the idea that the child was 
his servant, and to the extent that he would 
be liable for the torts of any other servant. 
The rule, being taken from the common law, 
is to be liberally construed. Stanford v. 
Smith, 173 Ga. 165, 159 S.E. 666, answer 
conformed to, 43 Ga. App. 747, 160 S.E. 93 
(1931); Stephens v. Stewart, 118 Ga. App. 
811, 165 S.E.2d 572 (1968), aff 'd in part and 
rev'd in part, 225 Ga. 185, 166 S.E.2d 890 
(1969). 

Father is not liable for tort of minor child, 
with which he was in no way connected, 
which he did not ratify, and from which he 
did not derive any benefit, merely because of 
the relation of parent and child. Stanford v. 
Smith, 173 Ga. 165, 159 S.E. 666, answer 
conformed to, 43 Ga. App. 747, 160 S.E. 93 
(1931); Hulsey v. Hightower, 44 Ga. App. 
455, 161 S.E. 664 (1931); Hubert v. Harpe, 
181 Ga. 168, 182 S.E. 167, answer conformed 
to, 52 Ga. App. 262, 183 S.E. 98 (1935); 
Herrin v. Lamar, 106 Ga. App. 91, 126 S.E.2d 
454 (1962); Wittke v. Home's Enters., Inc., 
118 Ga. App. 211, 162 S.E.2d 898 (1968); 
Stephens v. Stewart, 118 Ga. App. 811, 165 
S.E.2d 572 (1968), aff 'd in part and rev'd in 
part, 225 Ga. 185, 166 S.E.2d 890 (1969). 

Son as father's agent. — Under evidence 
which shows that a son assisted in doing little 



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things around the home, making minor 
repairs, and that a stairway fell when the son 
was using it, and he repaired it with some 
nails, there was some direct evidence that 
the son was the father's agent. Butier v. 
Moore, 125 Ga. App. 435, 188 S.E.2d 142 
(1972). 

Section applicable only to vicarious liabil- 
ity and not to parent's own negligence. — 
The principles of this section are applicable 
to cases where it is sought to hold a father 
liable for an injury by his child, indepen- 
dently of any fault on the part of the father, 
but are not applicable where a liability is 
claimed against the father for a negligent or 
wrongful act which is personal to himself, 
although the act of his child may be the 
immediate cause of the injury. Hulsey v. 
Hightower, 44 Ga. App. 455, 161 S.E. 664 
(1931). 

Parent may be liable for own negligence 
where it makes child's act possible. — A 
parent may be held liable for an injury 
caused directly by his minor child where the 
parent's own original negligence or contrib- 
uting negligence has made the child's act 
possible. Stephens v. Stewart, 118 Ga. App. 
811, 165 S.E.2d 572 (1968), aff' d in part and 
rev'd in part, 225 Ga. 185, 166 S.E.2d 890 
(1969). 

If the act of a child is legally traceable to 
the negligence of its father, the latter may be 
held responsible for injury and damage oc- 
casioned thereby; but in such a case the 
cause of action is founded upon the negli- 
gence of the father, and not upon the neg- 
ligence of the child plus the paternal rela- 
tion. Hulsey v. Hightower, 44 Ga. App. 455, 
161 S.E. 664 (1931). 

If a parent knows his child is irresponsible, 
incompetent or unqualified regarding cer- 
tain activities, and knowingly permits the 
child to engage in such activities, this may 
constitute such negligence on the part of the 
parent as will support a recovery. Stephens v. 
Stewart, 118 Ga. App. 811, 165 S.E.2d 572 
(1968), aff'd in part and rev'd in part, 225 
Ga. 185, 166 S.E.2d 890 (1969). 

Recovery is permitted where there was 
some parental negligence in furnishing or 
permitting a child access to an instrumental- 
ity with which the child likely would injure a 
third party. Muse v. Ozment, 152 Ga. App. 
896, 264S.E.2d328 (1980). 

Injury must be reasonably foreseeable. — 
In cases predicated on the parent's negli- 



gence, the ordinary element of all negli- 
gence cases must be shown, including, of 
course, the requirement that the parent 
should have foreseen or anticipated that 
some injury would likely result from the 
negligence. Stephens v. Stewart, 118 Ga. 
App. 811, 165 S.E.2d 572 (1968), aff'd in 
part and rev'd in part, 225 Ga. 185, 166 
S.E.2d890 (1969). 

Parent's negligence based on breach of 
duty to supervise child. — The true test for 
determining whether a parent is liable for 
the negligence of its child is not the fact of 
escape, but is whether (a) a duty was raised 
against the parent by the facts of the case of 
anticipating that in the absence of his super- 
vision a particular type of injury to another 
will result, and (b) whether he then exer- 
cised reasonable care to control and super- 
vise the infant to prevent such result. Assur- 
ance Co. of Am. v. Bell, 108 Ga. App. 766, 
134S.E.2d540 (1963). 

The true test of parental negligence vel 
non is whether in the exercise of ordinary 
care he should have anticipated that harm 
would result from the unsupervised activities 
of the child and whether, if so, he exercised 
the proper degree of care to guard against 
this result. Hill v. Morrison, 160 Ga. App. 
151, 286 S.E.2d 467 (1981). 

Parent not negligent absent knowledge of 
circumstances requiring special care. — Fail- 
ure to keep an "unremitting watch and 
restraint" over children in their own yard in 
the absence of knowledge of facts and cir- 
cumstances requiring such action is not neg- 
ligence. Scarboro v. Lauk, 133 Ga. App. 359, 
210S.E.2d848 (1974). 

Where a parent has no special reason to 
anticipate that a child, either through 
known dangerous proclivities or because of 
possession of dangerous instrumentalities, 
may inflict harm on the person or property 
of others, mere failure to supervise the 
child's play activities is not a failure to exer- 
cise ordinary care on the part of the parent 
so as to subject him to liability. Muse v. 
Ozment, 152 Ga. App. 896, 264 S.E.2d 328 
(1980). 

Although recovery is permitted where 
through parental negligence a child is per- 
mitted access to an instrumentality which, if 
not properly used, is foreseeably likely to 
cause injury to a third person, this does not 
make the parent liable for an injury negli- 



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Torts of Child (Cont'd) 

gently inflicted by a child where there is no 
dangerous proclivity known to the former 
and no reason to anticipate the injury which 
in fact occurred. Hill v. Morrison, 160 Ga. 
App. 151, 286 S.E.2d 467 (1981). 

Allowing a child unsupervised access to a 
golf club, without more, would not provide 
the evidence of parental negligence neces- 
sary for a recovery, as was the case where the 
instrument was a pistol, a shotgun, or a 
rotary lawnmower. Mayer v. Self, 178 Ga. 
App. 94, 341 S.E.2d 924 (1986). 

Jury questions. — Whether or not such 
precaution taken is sufficient to relieve the 
parents of responsibility for the death of a 
neighbor's child is not for the court to 
decide as a matter of law, but more properly 
for the jury as a matter of fact. Hill v. 
Morrison, 160 Ga. App. 151, 286 S.E.2d 467 
(1981). 

Where the instrumentality of harm used 
by the child is a firearm or other explosive, 
liability is frequently imposed upon an of- 
fending parent, or at the least a jury ques- 
tion as to such liability arises. Hill v. 
Morrison, 160 Ga. App. 151, 286 S.E.2d 467 
(1981). 

Where there was evidence that defendants 
were aware of a previous incident in which 
their son had hurt someone with a golf club, 
a jury issue was presented as to whether 
defendants should have anticipated injury to 
another through their child's use of a golf 
club. Mayer v. Self, 178 Ga. App. 94, 341 
S.E.2d924 (1986). 

Vicarious Liability 

Owner of automobile is not liable for 
negligence of its driver merely because he is 
owner of the vehicle. Graham v. Cleveland, 
58 Ga. App. 810, 200 S.E. 184 (1938); Hol- 
land v. Cooper, 192 F.2d 214 (5th Cir. 1951). 

Owner is not liable for negligence of 
operator of automobile merely because 
owner consented, expressly or impliedly, to 
operation by such person. Graham v. Cleve- 
land, 58 Ga. App. 810, 200 S.E. 184 (1938). 

Owner of automobile who is present in 
vehicle is liable for negligence of driver. 
American Cas. Co. v. Windham, 26 F. Supp. 
261 (M.D. Ga.), aff' d, 107 F.2d 88 (5th Cir. 
1939), cert, denied, 309 U.S. 674, 60 S. Ct. 
714, 84 L. Ed. 1019 (1940). 



Owner liable if driver is acting as servant 
at time of wrongful act. — In order to hold 
the owner liable under the doctrine of 
respondeat superior for the acts of the driver 
of a motor vehicle, the driver must be the 
agent or servant of the owner at the time of 
the wrongful act; and, in order to create 
such relationship, the essential and suffi- 
cient element is the owner's right to control 
and direct the driver's conduct. Powell v. 
Kitchens, 84 Ga. App. 701, 67 S.E.2d 203 
(1951). 

Effect of joint ownership of automobile. 
— In the case of joint ownership of a motor 
vehicle, where there is no express statute on 
the subject, such ownership does not render 
one of such persons liable when the ma- 
chine is operated by the other in his per- 
sonal affairs. Raley v. Hatcher, 61 Ga. App. 
846, 7 S.E.2d 777 (1940). 

Family Purpose Doctrine 

1. General Principles 

Liability under family purpose doctrine 
rests upon same principles of law as that 
governing master and servant or principal 

and agent. Johnson v. Brant, 93 Ga. App. 44, 
90 S.E.2d 587 (1955); Temple v. Chastain, 99 
Ga. App. 719, 109 S.E.2d 897 (1959). 

The family purpose doctrine is based on 
principles of agency. McCray v. Hunter, 157 
Ga. App. 509, 277 S.E.2d 795 (1981). 

Under the family purpose doctrine, the 
owner of an automobile who permits mem- 
bers of his household to drive it for their 
own pleasure or convenience is regarded as 
making such a family purpose his business, 
so that the driver is treated as his servant. 
Medlin v. Church, 157 Ga. App. 876, 278 
S.E.2d747 (1981). 

Liability under the family purpose doc- 
trine rests upon a fictional agency theory. 
Shank v. Phillips, 193 Ga. App. 393, 388 
S.E.2d5 (1989). 

Agency must be shown either in relation- 
ship of master and servant or under family 
car doctrine. Grahl v. McMath, 59 Ga. App. 
247, 200 S.E. 342 (1938). 

Agency may exist where owner keeps au- 
tomobile as "family car," for convenience 
and use of family members, and owner may 
in such case be liable for member's negli- 
gence, who is thus considered as driving the 
car "upon the business of the owner." Sam- 



180 



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IMPUTABLE NEGLIGENCE 



51-2-2 



pies v. Shaw, 47 Ga. App. 337, 170 S.E. 389 
(1933). 

Where one furnishes an automobile to 
members of his family for pleasure or con- 
venience, etc., he is liable for injuries in- 
flicted by the machine while it is being 
negligently operated by a member of the 
family for a purpose for which it was fur- 
nished, on the theory that the furnishing 
and using of the car for such purposes is the 
business of the husband and the one oper- 
ating it is the agent or servant of the owner 
in the course of his business. Durden v. 
Maddox, 73 Ga. App. 491, 37 S.E.2d 219 
(1946). 

Liability under this section attaches to the 
owner of an automobile who furnishes the 
same for the pleasure, comfort, or conve- 
nience of the members of his family, where 
one of the latter while driving it commits a 
tort upon another, on the theory that, when 
he makes it his business so to do, a member 
of the family operating the vehicle is doing 
so within the scope of the owner's business, 
under the law of principal and agent and of 
master and servant. Studdard v. Turner, 91 
Ga. App. 318, 85 S.E.2d 537 (1954). 

Under family purpose doctrine, agency 
must be proved as in other cases, except 
when law presumes agency. Durden v. 
Maddox, 73 Ga. App. 491, 37 S.E.2d 219 
(1946). 

Family car. — There is no presumption of 
law that man with family furnishes automo- 
bile to his family for pleasure and conve- 
nience merely because he owns one. Durden 
v. Maddox, 73 Ga. App. 491, 37 S.E.2d 219 
(1946). 

The family car rule states that the head of 
a family who keeps and maintains an auto- 
mobile for the use, comfort, pleasure and 
convenience of the family is liable for an 
injury resulting from the negligence of a 
member of the family while operating the 
automobile with the knowledge and consent 
of the owner, for the comfort or pleasure of 
the family, and thus in pursuance of the 
purpose for which it was kept and main- 
tained by the parent. Whitlock v. Michael, 79 
Ga. App. 316, 53 S.E.2d 587 (1949). 

When it is first established, at least prima 
facie, that a car is a family purpose car, then 
the agency of the family member driving is 
prima facie established, but the premise that 
a car is a family purpose car may not be 



shown by assuming that proof of ownership 
plus a family member's driving is family 
purpose. Durden v. Maddox, 73 Ga. App. 
491, 37 S.E.2d 219 (1946). 

The "family car doctrine" as applied in 
Georgia holds that where one furnishes an 
automobile to members of his family for 
pleasure or convenience he is liable for 
injuries inflicted by the machine while it is 
being negligendy operated by a member of 
the family for a purpose for which it was 
furnished, on the theory that the furnishing 
and using of the car for such purposes is the 
business of the one so furnishing it and the 
one operating it is the agent or servant of 
the one so furnishing it in the course of the 
business. Temple v. Chastain, 99 Ga. App. 
719, 109S.E.2d897 (1959). 

Basic elements of dtKrtrine. — There are, 
therefore, four requirements for the appli- 
cation of the family purpose doctrine: (1) 
the owner must have given permission to a 
family member to drive the vehicle, (2) the 
owner must have relinquished control of the 
vehicle to the family member, (3) the family 
member must be in the vehicle, and (4) the 
vehicle must be engaged in a family purpose. 
Quatdebaum v. Wallace, 156 Ga. App. 519, 
275 S.E.2d 104 (1980). 

Pleasure, comfort and convenience. — A 
member of a family who injures another 
while using the car for his own purposes 
within the scope of the business for which 
the car is maintained — that is, the pleasure, 
comfort and convenience of a member of 
the family — renders the head of the family 
who furnishes such automobile liable under 
the doctrine of respondeat superior. 
Johnson v. Brant, 93 Ga. App. 44, 90 S.E.2d 
587 (1955). 

Supervision and control. — The supervi- 
sion and control required to bring the car's 
use under the family purpose doctrine is the 
owner's (or provider's) furnishing of such 
supervision, control and use of the vehicle 
for the comfort, pleasure, and convenience 
of her family, i.e., within her business of 
family purpose; the ultimate supervision and 
control an owner exercises as an incident of 
his ownership does not of itself qualify to 
bring the doctrine into play. McCray v. 
Hunter, 157 Ga. App. 509, 277 S.E.2d 795 
(1981). 

Relationship is a precondition. — Appel- 
lee's unrefuted evidence shows the absence 



181 



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Family Purpose Doctrine (Cont'd) 
1. General Principles (Cont'd) 

of a necessary precondition, in that the 
negligent operator of the vehicle was not a 
member of the owner's immediate house- 
hold; this renders the family purpose doc- 
trine inapplicable to impose vicarious liabil- 
ity on the owner of the vehicle. Wingard v. 
Brinson, 212 Ga. App. 640, 442 S.E.2d 485 
(1994). 

Family purpose doctrine does not apply. 
See Willis v. Allen, 188 Ga. App. 390, 373 
S.E.2d79 (1988). 

Doctrine applicable although family mem- 
ber uses car for own pleasure. — The family 
purpose doctrine imposes liability on the 
head of the family who supplies the automo- 
bile notwithstanding the fact that it is being 
used at the time of the injury by the member 
of the family exclusively for his own individ- 
ual use or pleasure. Clayton v. Long, 147 Ga. 
App. 645, 249 S.E.2d 622 (1978). 

Where an unmarried man, who is the 
head of a family consisting of himself, a 
widowed mother, and two sisters, one of 
whom is unmarried, furnishes and maintains 
an automobile for the use of the members of 
the family for their pleasure and comfort, 
and where, while on a particular occasion 
with the specific authority and consent of 
the brother, the automobile is being run and 
operated by the unmarried sister for the 
comfort and pleasure of herself and her 
friends, another person is injured and dam- 
aged as the proximate result of the negli- 
gence of the sister in operating the automo- 
bile, the unmarried brother is liable for such 
injuries. Levy v. Rubin, 181 Ga. 187, 182 S.E. 
176, answer conformed to, 52 Ga. App. 212, 
183 S.E. 98 (1935). 

Car need not be available to all family 
members. — If the head of a family makes it 
his business to furnish a particular automo- 
bile for the pleasure and convenience of less 
than all of the members of his family to the 
exclusion of others, his liability for the neg- 
ligent acts of such a favored member while 
operating the automobile so furnished is not 
affected by the failure to so furnish this 
automobile to other members of the family 
circle. Temple v. Chastain, 99 Ga. App. 719, 
109S.E.2d897 (1959). 

Family purpose doctrine applies equally as 
well to boats. Stewart v. Stephens, 225 Ga. 
185, 166S.E.2d890 (1969). 



Family purpose doctrine applies not only 
to driving of automobiles, but to operation 
of motorboats as well. Quattlebaum v. 
Wallace, 156 Ga. App. 519, 275 S.E.2d 104 
(1980). . 

Principles of family purpose doctrine as 
set forth in this section have been applied to 
cases involving aircraft. Kimbell v. DuBose, 
139 Ga. App. 224, 228 S.E.2d 205 (1976). 

Doctrine not applicable to use of bicycle 
furnished to minor by parent. — A father is 
not liable to a third person for injuries 
unlawfully and negligently inflicted by his 
minor son in the use of a bicycle furnished 
by the father to the son for the purpose of 
going to and from school. Calhoun v. Pair, 71 
Ga. App. 211, 30 S.E.2d 776 (1944). 

2. Use by Spouse 

Independent actions of spouse. — A hus- 
band, under this section, is not liable for an 
independent tort committed by the wife in 
the operation of an automobile not fur- 
nished by him to the wife, and not used in 
the husband's business, but operated with- 
out his consent, command, or participation 
in any way. 

Authorized use by wife imputable to hus- 
band. — Where a person maintained an 
automobile for use by his family, including 
his wife, and the wife, with the husband's 
consent, used the automobile for the pur- 
pose of going on a trip, the wife, in taking 
and operating the car while on the trip, did 
so as the authorized agent of the husband, 
and any negligence on her part in the oper- 
ation of the automobile pursuant to the 
purpose for which she is using it was imput- 
able to the husband. Petway v. McLeod, 47 
Ga. App. 647, 171 S.E. 225 (1933). 

Husband responsible for wife's negli- 
gence. — A husband is liable for the negli- 
gence of his wife in driving an automobile 
which is kept and controlled by him and 
which he furnished her for family purposes 
or for her pleasure, comfort, and conve- 
nience, if she was so using it at the time when 
the injury sued for occurred. Hexter v. Bur- 
gess, 52 Ga. App. 819, 184 S.E. 769 (1936). 

Carpooling. — Under the family purpose 
car doctrine, where the owner of an automo- 
bile furnishes the same to members of his 
family, for the convenience of the family, he 
is liable for an injury caused by the negligent 
operation of the automobile by his wife in 



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carrying their child to and from school and 
the fact that the wife was transporting in the 
car other children to and from this school 
building would not of itself render this doc- 
trine inapplicable. Doss v. Miller, 87 Ga. App. 
230, 73 S.E.2d 349 (1952). 

3. Use by Child 

Automobile for pleasure and comfort. — 

Where a father provides an automobile for 
the purpose of furnishing his family with 
pleasure and comfort, and a member of his 
family uses such automobile for that pur- 
pose, the use of the automobile therefore is 
within the scope of the father's business. 
Wolfson v. Rainey, 51 Ga. App. 493, 180 S.E. 
913 (1935). 

Where an automobile is placed in the 
hands of his family by a father, for the 
family's pleasure, comfort, and entertain- 
ment, justice requires that the owner should 
be responsible for its negligent operation, 
because only by doing so, as a general rule, 
can substantial justice be attained. Hubert v. 
Harpe, 181 Ga. 168, 182 S.E. 167, answer 
conformed to, 52 Ga. App. 262, 183 S.E. 98 
(1935). 

A mother, the owner, is liable for minor 
son's negligent operation of automobile 
maintained for the comfort and pleasure of 
the family, where the minor son resides with 
the family and drives the automobile for his 
own pleasure with the expressed or implied 
permission of the mother. Evans v. Caldwell, 
52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 
184 Ga. 203, 190 S.E. 582 (1937). 

Authorized use. — If a father or mother, 
owning an automobile, and keeping it to be 
used for the comfort and pleasure of the 
family, should authorize a son to drive it for 
the comfort or pleasure of the family, this 
would make the owner liable for the negli- 
gence of the son operating the machine for 
such purpose. Grahl v. McMath, 59 Ga. App. 
247, 200 S.E. 342 (1938). 

The controlling test under this section is 
not whether the child is operating an auto- 
mobile or a boat, but whether he is using the 
car or boat for a purpose for which the 
parent provided it, with the permission of 
the parent, express or implied. Stewart v. 
Stephens, 225 Ga. 185, 166 S.E.2d 890 
(1969). 

Basic principle. — The family car doctrine 
is based squarely on the relation of master 



and servant or principal and agent, and 
holds that a child may occupy the position of 
a servant or agent of his parent, and for his 
acts, and as such, the parent may be liable 
under the general principles governing the 
relation of master and servant, or principal 
and agent. Whitlock v. Michael, 79 Ga. App. 
316, 53S.E.2d587 (1949). 

Father not obligated to provide automo- 
bile. — A father is under no legal obligation 
to furnish an automobile for the comfort 
and pleasure of his child, whether minor or 
adult; and if he does so, it is a voluntary act 
on his part, and in every such case the 
question in determining liability under the 
family car doctrine is whether the father, or 
other parent has expressly or impliedly 
made the furnishing of an automobile for 
such purpose a part of his business, so that 
one operating vehicle for that purpose with 
his consent, express or implied, may be 
considered as his agent or servant. Whitlock 
v. Michael, 79 Ga. App. 316, 53 S.E.2d 587 
(1949). 

Relationship does not make agency. — 
Where mother lent her car to her son as she 
might to another who was not a member of 
her family, and not as a vehicle which she 
had provided in her business of extending 
pleasure and comfort to her family, in his 
use of the car, the son was not the mother's 
agent in pursuit of her family purpose busi- 
ness; the mere fact that she owned the car 
does not create an agency in her son's use of 
it, nor does her mere consent to him to use 
the car, nor, moreover, does such consent 
plus the fact that he was a member of her 
family create such an agency for family pur- 
pose and business. McCray v. Hunter, 157 
Ga. App. 509, 277 S.E.2d 795 (1981). 

Requirements for family purpose met. — 
Where mother purchased the car with a 
check drawn on her account and retained 
title in her name, where the car was insured 
as belonging to her on a policy covering two 
cars, where the money to pay for the car was 
deposited to her checking account from her 
son's savings account and he reimbursed her 
for his share of the insurance premiums, 
where she had never driven or ridden in the 
car and contributed no money for its up- 
keep, and where she had deprived her son of 
use of the car as an incentive to do better in 
school, granting of summary judgment on 
the basis that the car was not being used as a 



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Family Purpose Doctrine (Cont'd) 
3. Use by Child (Cont'd) 

family purpose vehicle was in error. Tolbert 
v. Murrell, 253 Ga. 566, 322 S.E.2d 487 
(1984). 

Requirements for family purpose not met. 
— Where the evidence conclusively estab- 
lishes that a vehicle was owned and operated 
by an individual acting in his own capacity as 
the donee of an absolute gift, without any 
necessity for the consent of his father, ex- 
pressed or implied, and without the exercise 
of any authority or control by the father, 
these facts fail to disclose that the use was 
intended for a family purpose in any way or 
any basis for an action against the father 
under the family-purpose doctrine for dam- 
ages and injuries arising from its negligent 
operation. Keith v. Carter, 172 Ga. App. 588, 
323S.E.2d886 (1984). 

Doctrine does apply where authority exists 
although family member exceeds it. — A son 
living with his mother as a member of the 
family, having general authority to drive the 
family car for pleasure and convenience, is 
acting within the scope of his authority in so 
doing, though he violates the conditions of 
that grant of authority. Evans v. Caldwell, 52 
Ga. App. 475, 184 S.E. 440 (1936), aff 'd, 184 
Ga. 203, 190 S.E. 582 (1937). 

Where an automobile is furnished by a 
father as a family purpose automobile, the 
mere fact that one of the children used it for 
such purpose contrary to express instruc- 
tions from the father not to use the automo- 
bile in his absence does not necessarily de- 
stroy the relationship between the parties 
which is that of master and servant, and does 
not necessarily render the act of the son in 
operating the automobile for the family pur- 
pose, although contrary to the express or- 
ders of the father, an act of the son alone 
and not his act as a servant of the father. 
Battle v. Kilcrease, 54 Ga. App. 808, 189 S.E. 
573 (1936). 

Doctrine not applicable where family 
member not authorized to use vehicle. — A 
stepdaughter who does not live in the home 
of and is not a member of the family or 
household of her stepfather, but who lives 
with her own father, should not be consid- 
ered as a member of her stepfather's family, 
to the extent of holding him liable where he 
keeps and maintains an automobile for the 



comfort, pleasure, and business of his family, 
and his stepdaughter, while not living with 
him, without his knowledge or consent, 
takes the automobile and uses it for her 
exclusive comfort and pleasure, and not 
connected in any way with the business or 
pleasure of the family of her stepfather, and 
while so using it has a wreck, inflicting 
certain injuries upon another. Wolfson v. 
Rainey, 51 Ga. App. 493, 180 S.E. 913 (1935). 

Where the undisputed evidence showed 
that father had expressly denied to his 
15-year-old son any use of his car on the 
occasion in question, the law will not pre- 
sume or assume an implied assent, especially 
where it was also denied that such car was 
ever so used as to make applicable to it the 
family car doctrine. Grahl v. McMath, 59 Ga. 
App. 247, 200 S.E. 342 (1938). 

Owner cannot be found liable on the basis 
of the family purpose doctrine when the 
minor with permission to use the car was not 
driving or riding in the car and was not 
authorized by the owner to permit others to 
drive it. Rucker v. Frye, 151 Ga. App. 415, 
260S.E.2d373 (1979). 

The trial court erred in finding the family 
purpose doctrine applicable where the 
uncontroverted evidence indicates that only 
the appellant was authorized to operate the 
motorboat, and his stepson had in the past 
only been permitted to drive the boat with 
the appellant present and presumably in 
control, where never before the date of the 
accident had the appellant ever permitted 
another person to control the operation of 
the boat, and where appellant had neither 
given his stepson permission to drive the 
boat on the day in question nor to allow 
anyone else other than whom he designated 
to drive the boat. Quatdebaum v. Wallace, 
156 Ga. App. 519, 275 S.E.2d 104 (1980). 

Denial of authorized use must be explicit 
and consistent. — If an automobile is avail- 
able and no positive steps have been taken to 
prohibit the use of the automobile by the 
family member, then the owner is liable even 
though on one occasion the child has been 
instructed that he may not use the automo- 
bile. Clayton v. Long, 147 Ga. App. 645, 249 
S.E.2d622 (1978). 

Not applicable to mere "loan" of vehicle 
to nondependent adult child. — If father was 
sole owner of car and son was over 21 years 
of age and was not a member of the family 



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51-2-2 



within the meaning of the family car doc- 
trine, a mere loan of the car by the father to 
the son was in principle the same as if he had 
loaned it to a friend to go on a mission solely 
for the benefit of the friend and would in 
fact make the son a mere bailee and if the 
son's chauffeur or driver injured some one 
on the trip, the father would not be liable. 
Raley v. Hatcher, 61 Ga. App. 846, 7 S.E.2d 
777 (1940). 

"Loan" to minor child. — It is essential to 
a "family purpose rule" case, that it be 
established that the vehicle furnished for the 
members of the family to use and is being so 
used at the time, for a mere lending of an 
automobile to a minor son to use for his own 
purposes is not sufficient. Studdard v. 
Turner, 91 Ga. App. 318, 85 S.E.2d 537 
(1954). 

Doctrine inapplicable to child acting as 
agent for another entity. — Family purpose 
doctrine does not extend to hold a parent 
liable for the acts of a child performed in the 
child's capacity as agent or employee for 
another person or entity. Shank v. Phillips, 
193 Ga. App. 393, 388 S.E.2d 5 (1989). 

4. Use by Other 

Doctrine not inapplicable merely because 
car also used in business. — Fact that auto- 
mobile may have been kept and maintained 
primarily for business use by the owner does 
not remove it from the operation of the 
"family car doctrine" when it is also regu- 
larly furnished to members of the owner's 
family for their pleasure and convenience. 
Temple v. Chastain, 99 Ga. App. 719, 109 
S.E.2d897 (1959). 

Corporation holding title to vehicle. — 
Where the president of a corporation had 
the custody of an automobile which was used 
exclusively by him and his wife, the fact that 
the title to the car was in the corporation 
would not absolve him from liability for her 
negligence -under the family car doctrine. 
Hexter v. Burgess, 52 Ga. App. 819, 184 S.E. 
769 (1936). 

Corporate tide holder not liable under 
family purpose doctrine. — Where a wholly 
owned family corporation furnishes a vehi- 
cle owned by the corporation to its president 
for his personal and business use, and he 
permits the unrestricted use of the vehicle 
by members of his family with the knowledge 
and consent of corporate officers and stock- 



holders, and, while the vehicle is so used, a 
third person is injured because of negli- 
gence, the corporation is not negligent un- 
der the family-purpose car doctrine. 
Mcintosh v. Neal-Blun Co., 123 Ga. App. 
836, 182S.E.2d696 (1971). 

Use of vehicle by nondependent adult 
child. — Under the "family purpose doc- 
trine" a parent is liable for damages caused 
by an adult child living with the parent when 
such child causes the damages through the 
negligent operation of the family automo- 
bile. Kennedy v. Manis, 46 Ga. App. 808, 169 
S.E. 319 (1933). 

Where a father keeps and maintains an 
automobile to be used for the comfort and 
pleasure of his family, including his wife and 
minor children, and where he permits a 
nondependent, self-supporting adult son to 
reside in his home without charge, whom he 
also as a matter of custom voluntarily per- 
mits to use and drive the automobile for the 
comfort and pleasure of the son upon the 
same footing as the father's wife and minor 
children, the father can be held liable for a 
personal injury to a third person proxi- 
mately caused by the negligent operation of 
the automobile by such son, where at the 
time of the injury the son was driving the 
vehicle for his own recreation and pleasure 
by the express or implied permission of the 
father. Hubert v. Harpe, 181 Ga. 168, 182 
S.E. 167, answer conformed to, 52 Ga. App. 
262, 183 S.E. 98 (1935); Belch v. Sprayberry, 
97 Ga. App. 47, 101 S.E.2d 870 (1958). 

The family car rule has been extended to 
liability for damages caused by an adult son 
or daughter living with the parent as a 
member of the family, and to a 
"nondependent, self-supporting adult son" 
who resided in the home without charge and 
by custom was voluntarily permitted to drive 
the car for his own comfort and pleasure 
upon the same footing as the father's wife 
and minor children. Whidock v. Michael, 79 
Ga. App. 316, 53 S.E.2d 587 (1949). 

Since a child, whether a minor or an adult, 
may occupy the position of a servant or 
agent of his parent, for his negligent acts as 
such the parent may be liable under the 
family car doctrine thus whether the child is 
an adult or a minor is immaterial, except as 
a circumstance to be considered in deter- 
mining whether the relation of master and 
servant really existed, and by the same pro- 



185 



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Family Purpose Doctrine (Cont'd) 
4. Use by Other (Cont'd) 

cess of reasoning it is likewise immaterial, to 
the same extent, whether an adult child 
living in the house with the parent was single 
or married. Whitlock v. Michael, 79 Ga. App. 
316, 53S.E.2d587 (1949). 

If the driver of an automobile involved in 
an accident is a member of the owner's 
family and otherwise within the purview of 
the "family purpose rule" it does not matter 
that he is a nondependent, self-supporting 
son, or that the son lives a part of the time 
away from home. Studdard v. Turner, 91 Ga. 
App. 318, 85 S.E.2d 537 (1954). 

Owner may be liable where third party 
operates vehicle as agent of family member. 

— Where a married woman owns as her 
separate property an automobile which she 
keeps for the comfort, pleasure, and conve- 
nience of the members of her family includ- 
ing her husband, who had general authority 
from the wife not only to ride in but to direct 
the operation of the car by others for his 
own pleasure, and where, without the knowl- 
edge or the express consent of the wife, she 
not being present, the husband procures an 
adult person, not a member of her family, to 
drive the car under the direction, control, 
and supervision of the husband, the wife, 
under the "family purpose doctrine," is lia- 
ble in damages for personal injuries to a 
third person caused by the negligence of the 
driver in operating the car on a public 
highway. Golden v. Medford, 189 Ga. 614, 7 
S.E.2d 236 (1940). 

A member of a family for whose pleasure, 
comfort, and convenience an automobile is 
furnished may use such automobile for his 
pleasure and convenience, and may under 
certain circumstances, in so using it, obtain 
the services of another person to operate it 
for him, he being present and the car being 
under his direction or control and the use to 
which it is put being the accomplishment of 
a mission of his own, and the owner who 
furnishes such automobile may still be liable 
under the doctrine of respondeat superior. 
Johnson v. Brant, 93 Ga. App. 44, 90 S.E.2d 
587 (1955). 

No liability if family member "lends*' car. 

— The fact that son had a right to use car 
belonging to his father as he pleased for his 
own purposes was not sufficient to make his 



father, the owner, liable, where the son lent 
the car to another under circumstances 
where, had the father himself lent the car to 
such other he would not be liable. Johnson v. 
Brant, 93 Ga. App. 44, 90 S.E.2d 587 (1955). 
No liability if third party had no authority 
from owner or family member. — Where no 
negligence is alleged against the owner, or a 
member of his family, and where the opera- 
tor of the vehicle is not a servant or agent of 
the owner nor a servant or agent of a 
member of the owner's family who would 
have a right, under the family car doctrine, 
to employ the services of another to drive 
him while he was using the car for the 
purpose for which such family car was main- 
tained, the owner is not liable. Johnson v. 
Brant, 93 Ga. App. 44, 90 S.E.2d 587 (1955). 

5. Procedure 

Whether doctrine applicable is question of 
fact. — Genuine issues of material fact, 
precluding summary judgment, existed as to 
whether the family purpose doctrine was 
applicable where, despite multiple resi- 
dences and a subsequent divorce, there was 
evidence that, at the time of the accident, 
the owner's family continued to function as a 
cohesive social entity, and that he had the 
right to exercise, and did in fact exercise, 
authority and control over the use of the 
automobile. Smith v. Sherman, 197 Ga. App. 
183, 397 S.E.2d 617 (1990). 

Negligence must be determined. — The 
family car doctrine renders a parent or 
guardian who keeps an automobile for the 
comfort and pleasure of his family liable for 
the negligence of any member of the family 
driving the vehicle with his consent, either 
express or implied, as the agent of the 
owner. However, the jury must first deter- 
mine the family members' negligence before 
applying the family car doctrine. Clayton v. 
Long, 147 Ga. App. 645, 249 S.E.2d 622 
(1978). 

No need to join family member as party 
defendant. — Under Georgia law where the 
head of the family is sought to be held liable 
for some wrong committed by a member of 
his family within the scope of the family 
purpose doctrine, that member of the family 
need not necessarily be joined as a party 
defendant. Medlin v. Church, 157 Ga. App. 
876, 278 S.E.2d 747 (1981). 



186 



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Jury instructions. — The trial judge erred 
in charging the jury in substance that the 
defendant would be liable if the negligence 
of his son caused injury or damage, without 
in this same connection instructing them 
that it must appear from the evidence that 
the defendant furnished the automobile for 
the use, pleasure, comfort, and convenience 
of his family, and that it was, at the time of 
the collision, being operated by the defen- 
dant's son within the scope of the purpose 
for which it was furnished. Studdard v. 
Turner, 91 Ga. App. 318, 85 S.E.2d 537 
(1954). 

It was question for jury to say whether car 
kept by mother was a family purpose car, 
within meaning of "family car rule," so as to 
subject her to liability for damages from its 
negligent operation by her self-supporting, 
adult married daughter living in the home 
with her. Whitlock v. Michael, 79 Ga. App. 
316, 53S.E.2d587 (1949). 

Use of car one time by wife and husband's 
leaving key at home is insufficient evidence 
to establish fact that car was a family pur- 
pose car. Durden v. Maddox, 73 Ga. App. 
491, 37S.E.2d219 (1946). 

If evidence fails to show that automobile 
was furnished by husband as "family pur- 
pose" car, verdict against husband is unau- 
thorized. Durden v. Maddox, 73 Ga. App. 
491, 37S.E.2d219 (1946). 

Torts of Servant 

1. Definitions and General Scope 

Common law applies. — The common law 
rule as to liability or nonliability of the 
master for acts of a substitute employee 
engaged without authority of the master, has 
been followed: every person is liable for torts 
committed by his servant, by his command 
or in the prosecution and within the scope 
of his business, whether the same be by 
negligence or voluntary. Carter v. Bishop, 
209 Ga. 919, 76 S.E.2d 784 (1953). 

Section 10-6-61 and this section, being in 
pari materia, must be construed together. 
Planters Cotton Oil Co. v. Baker, 181 Ga. 
161, 181 S.E. 671 (1935); King v. Citizens 
Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953). 

While the word "business" in this section 
is commonly employed in connection with an 
occupation for livelihood or profit, it is not 
limited to such pursuits. Butler v. Moore, 125 



Ga. App. 435, 188 S.E.2d 142 (1972). 

Corporation is a "person" in the meaning 
of this section. Louisville & N.R.R. v. 
Hudson, 10 Ga. App. 169, 73 S.E. 30 (1911). 

This section applies as well where the 
master is a corporation as where he is a 
private individual. Southern Grocery Stores, 
Inc. v. Herring, 63 Ga. App. 267, 1 1 S.E.2d 57 
(1940). 

A corporation, under the law, is a "per- 
son," and the terms of this section apply to 
corporations as well as to natural persons. 
Digsby v. Carroll Baking Co., 76 Ga. App. 
656, 47S.E.2d203 (1948). 

The word "servant" means an employee 
as well as a domestic servant. Toole Furn. 
Co. v. Ellis, 5 Ga. App. 271, 63 S.E. 55 (1908); 
Andrews v. Nor veil, 65 Ga. App. 241, 15 
S.E.2d 808 (1941); Du Pree v. Babcock, 100 
Ga. App. 767, 112 S.E.2d 415 (1959). 

The word "voluntary" in this section will 
cover any or all motives or purposes of the 
wrongdoer, acting in the scope of his em- 
ployment, which are not covered by acts of 
negligence. Frazier v. Southern Ry., 200 Ga. 
590, 37 S.E.2d 774 (1946); Pope v. Seaboard 
Air Line R.R., 88 Ga. App. 557, 77 S.E.2d 55 
(1953); McCranie v. Langdale Ford Co., 176 
Ga. App. 281, 335 S.E.2d 667 (1985). 

2. Basis of Master's Liability 

Master liable for torts of servant commit- 
ted within scope of business. — If a tort is 
committed by a servant in the prosecution of 
the master's business, that is, if the servant is 
at the time engaged in serving the master, 
the latter will be liable. Savannah Elec. Co. v. 
Wheeler, 128 Ga. 550, 58 S.E. 38 (1907); 
Atianta Hub Co. v. Jones, 47 Ga. App. 778, 
171 S.E. 470 (1933). 

Where a servant does an act in the execu- 
tion of a lawful authority given him by his 
master and for the purpose of performing 
what the master has directed, the master will 
be liable for an injury thereby inflicted on 
another, whether the wrong be occasioned 
by negligence or by a wanton and reckless 
purpose to accomplish the master's business 
in an unlawful manner. Personal Fin. Co. v. 
Whiting, 48 Ga. App. 154, 172 S.E. Ill 
(1933); Gomez v. Great Atl. 8c Pac. Tea Co., 
48 Ga. App. 398, 172 S.E. 750 (1934). 

It is not essential to the liability of a master 
for the willful and intentional tort of a 
servant that the servant shall have acted at 



187 



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Torts of Servant (Cont'd) 

2. Basis of Master's Liability (Cont'd) 

the command of the master or with the 
master's consent; the master is liable if a tort 
is committed by the servant in the course of 
the servant's employment while the servant 
is acting within the scope of his authority 
and in the prosecution of the master's busi- 
ness. Ford v. Mitchell, 50 Ga. App. 617, 179 
S.E. 215 (1935). 

The test of the master's responsibility for 
the acts of his servant is, not whether such 
act is done in accordance with the instruc- 
tion of the master to the servant, but 
whether it is done in the prosecution and in 
the scope of the master's business. Evans v. 
Caldwell, 52 Ga. App. 475, 184 S.E. 440 
(1936), aff'd, 184 Ga. 203, 190 S.E. 582 
(1937); Crane Auto Parts, Stewart Ave. 
Branch, Inc. v. Patterson, 90 Ga. App. 257, 82 
S.E.2d666 (1954). 

A master is responsible for the tortious 
acts of his servant, done in his business and 
within the scope of his employment, al- 
though he does not authorize or know of the 
particular act, or even if he disapproves or 
forbids. Evans v. Caldwell, 52 Ga. App. 475, 
184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 
S.E. 582 (1937); Crane Auto Parts, Stewart 
Ave. Branch, Inc. v. Patterson, 90 Ga. App. 
257, 82S.E.2d666 (1954). 

The rule is that for all acts done by a 
servant in obedience to the express orders 
or directions of a master, or in the execution 
of the master's business, within the scope of 
his employment, and for acts in any sense 
warranted by the express or implied author- 
ity conferred upon him considering the na- 
ture of the services required, the instruc- 
tions given, and the circumstances under 
which the act is done, the master is respon- 
sible. Dawson Motor Co. v. Petty, 53 Ga. App. 
746, 186 S.E. 877 (1936). 

The test is not that the act of the servant 
was done during the existence of the em- 
ployment, that is to say, during the time 
covered by the employment, but whether it 
was done in the prosecution of the master's 
business; whether the servant was at that 
time engaged in serving his master. Jump v. 
Anderson, 58 Ga. App. 126, 197 S.E. 644 
(1938); Cooley v. Tate, 87 Ga. App. 1, 73 
S.E.2d 72 (1952); Watkins v. United States, 
462 F. Supp. 980 (S.D. Ga. 1977), aff'd, 587 
F.2d279 (5th Cir. 1979). 



A master is liable for a tort committed by 
his servant in the prosecution and within his 
business, whether by negligence or willfully. 
Brown v. Union Bus Co., 61 Ga. App. 496, 6 
S.E.2d 388 (1939). 

In order for the master to be liable for 
torts committed by his servant the tort-feasor 
must have either acted by command of the 
master or the tortious act must have been 
perpetrated in the prosecution of and within 
the scope of the master's business. There is 
no liability on the part of the master arising 
from the mere relationship of master and 
servant. Falls v. Jacobs Pharmacy Co., 71 Ga. 
App. 547, 31 S.E.2d 426 (1944); Taff v. Life 
Ins. Co., 77 Ga. App. 836, 50 S.E.2d 154 
(1948); Parry v. Davison-Paxon Co., 87 Ga. 
App. 51, 73 S.E.2d 59 (1952); Jones v. Re- 
serve Ins. Co., 149 Ga. App. 176, 253 S.E.2d 
849 (1979). 

To render a master liable for his servant's 
tort, the servant must be acting both in the 
prosecution and within the scope of the 
master's business. Ruff v. Gazaway, 82 Ga. 
App. 151, 60 S.E.2d 467 (1950). 

For injuries caused by the negligence of 
an employee not directed or ratified by the 
employer, the employee is liable because he 
committed the act which caused the injury, 
while the employer is liable, not as if the act 
was done by himself, but because of the 
doctrine of respondeat superior, the rule of 
law which holds the master responsible for 
the negligent act of his servant committed 
while the servant is acting within the general 
scope of his employment and engaged in his 
master's business. Stapleton v. Stapleton, 85 
Ga. App. 728, 70 S.E.2d 156 (1952). 

In order for the master to be liable for 
torts committed by his servant the tort-feasor 
must either have acted by command of the 
master or the tortious act must have been 
perpetrated in the prosecution of and within 
the scope of the master's business. Parry v. 
Davison-Paxon Co., 87 Ga. App. 51, 73 
S.E.2d 59 (1952); McCranie v. Langdale 
Ford Co., 176 Ga. App. 281, 335 S.E.2d 667 
(1985). 

In order for the master to be liable the 
tortious conduct of the servant must have 
been by the command of the master or in 
the prosecution and within the scope of his 
business; it must appear that the negligence 
of the defendant's servant arose in a trans- 
action in the doing of which the servant was 



188 



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actually engaged in the performance of his 
master's business. Cooley v. Tate, 87 Ga. App. 
1, 73S.E.2d72 (1952). 

In determining the liability of the master 
for the negligent or willful acts of a servant, 
the test of liability is, not whether the act was 
done during the existence of the employ- 
ment, but whether it was done within the 
scope of the actual transaction of the mas- 
ter's business for accomplishing the ends of 
his employment Jones v. Reserve Ins. Co., 
149 Ga. App. 176, 253 S.E.2d 849 (1979); 
Sexton Bros. Tire Co. v. Southern Burglar 
Alarm Co., 153 Ga. App. 413, 265 S.E.2d 335 
(1980). 

A master will be liable for injury to third 
persons caused by a servant's negligent act 
done in furtherance of the master's business. 
Harden v. United States, 485 F. Supp. 380 
(S.D. Ga. 1980), aff'd, 688 F.2d 1025 (5th 
Cir. 1982). 

To hold a master liable for a tort commit- 
ted by his servant, it must appear that at the 
time of the injury the servant was engaged in 
the master's business and not upon some 
private and personal matter of his own; that 
is, the injury must have been inflicted in the 
course of the servant's employment. May v. 
Phillips, 157 Ga. App. 630, 278 S.E.2d 172 
(1981). 

Master acquiesces in action of servant. — 
To neglect to exercise authority to forbid a 
thing is, in legal contemplation, to permit it 
Gorman v. Campbell, 14 Ga. 137 (1853). 

Where a master (principal) has knowl- 
edge that his servant (agent) pursues a given 
course of conduct and the master takes no 
steps to prevent such conduct, the master is 
liable for the consequences. Allen 8c Bean, 
Inc. v. American Bankers Ins. Co., 153 Ga. 
App. 617, 266 S.E.2d 295 (1980). 

The true test of liability is not whether the 
tort was committed by reason of anger, mal- 
ice or ill will, but whether or not it was 
committed in the prosecution and within 
the scope of the master's business. Parry v. 
Davison-Paxon Co., 87 Ga. App. 51, 73 
S.E.2d 59 (1952); Pope v. Seaboard Air Line 
R.R., 88 Ga. App. 557, 77 S.E.2d 55 (1953); 
McCranie v. Langdale Ford Co., 176 Ga. 
App. 281, 335 S.E.2d 667 (1985). 

The true test of vicarious liability is 
whether or not the tort is committed in the 
prosecution and within the scope of the 
master's business. Fountain v. World Fin. 



Corp., 144 Ga. App. 10, 240 S.E.2d 558 
(1977). 

Relationship required. — To impose liabil- 
ity under respondeat superior, some rela- 
tionship must exist between the principal 
and agent or employer and employee, and 
where the unrebutted evidence showed that 
defendant-landowner had no such relation- 
ship with injured employee and did not 
authorize him to -act on his behalf, the 
necessary element for the imposition of lia- 
bility was absent. Gaskins v. Gaona, 209 Ga. 
App. 322, 433 S.E.2d 408 (1993). 

Master not liable if servant not liable. — 
Where a lawsuit is brought against a master 
and a servant based upon a cause of action 
attributable to the master under the doc- 
trine of respondeat superior, a verdict find- 
ing only against the master and releasing the 
servant may be set aside where the pleadings 
and the evidence fail to allege or show any 
independent tort of the master which could 
have supported the verdict. Colonial Stores, 
Inc. v. Fishel, 160 Ga. App. 739, 288 S.E.2d 
21 (1981). 

Mere fact that servant's negligent act is 
expressly forbidden by master does not ab- 
solve master of vicarious liability, the test 
being whether the servant's negligent act is 
within the class of acts that the servant is 
authorized to perform, and if the act is 
within the class, the master is bound, al- 
though the servant is forbidden to perform 
the particular act. Harden v. United States, 
485 F. Supp. 380 (S.D. Ga. 1980), aff'd, 688 
F.2dl025 (5th Cir. 1982). 

Where an employee is acting within the 
class of service he has authority to perform, 
the master is bound even though the servant 
is forbidden to perform the particular act. 
Southern Airways Co. v. Sears, Roebuck 8c 
Co., 106 Ga. App. 615, 127 S.E.2d 708 
(1962). 

Anger or malice in commission of tort by 
servant is not defense for master. Frazier v. 
Southern Ry., 200 Ga. 590, 37 S.E.2d 774 
(1946). 

Allowing a master to defend an action for 
his servant's tort by showing that at the time 
of the commission of the tort, where the 
servant was within the course of his employ- 
ment, the servant acted through anger, mal- 
ice, or ill will, would defeat the purpose of 
this section, which makes the master liable 
for voluntary torts. Frazier v. Southern Ry., 



189 



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Torts of Servant (Cont'd) 

2. Basis of Master's Liability (Cont'd) 

200 Ga. 590, 37 S.E.2d 774 (1946). 

Employer is not liable for misconduct of 
employee without the scope of his employ- 
ment. Great Atl. & Pac. Tea Co. v. Cox, 51 
Ga. App. 880, 181 S.E. 788 (1935). 

Employer is not liable for acts of his 
employee in no way connected with or in 
furtherance of employer's business. Lewis v. 
Millwood, 112 Ga. App. 459, 145 S.E.2d 602 
(1965). 

Where a servant acts not in the prosecu- 
tion of his master's business or within the 
scope of such business, the master cannot be 
held liable, no matter how wanton or willful 
the conduct of the servant so that if the 
servant, wholly for a purpose of his own, 
disregarding the object for which he is em- 
ployed, and not intending by his act to 
execute it, does an injury to another not 
within the scope of his employment, the 
master is not liable. Gomez v. Great Atl. & 
Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 
(1934). 

Where there is no showing that the ser- 
vant was acting within the scope of his 
employment or in the prosecution of his 
employer's business, or that the nature of 
the employee's service was such that his 
authority to perform the act on behalf of his 
employer could be legitimately inferred, 
there is no liability on the part of the em- 
ployer for the conduct of the employee. 
Rivers v. Mathews, 96 Ga. App. 546, 100 
S.E.2d637 (1957). 

Benefit to master not required. — The 
liability of an employer for the negligence of 
his servant is predicated on the basis that his 
servant, while in the course and scope of his 
employment, causes the injury, regardless of 
whether the master benefited from the act 
or not. Carter v. Bishop, 209 Ga. 919, 76 
S.E.2d 784 (1953). 

Master is not liable when act of servant is 
done purely from personal spite or malice 
and has no connection with the business 
about which he is employed. Estridge v. 
Hanna, 55 Ga. App. 159, 189 S.E. 364 
(1936). 

Master not liable when servant steps aside 
from master's business. — If a servant steps 
aside from his master's business for however 
short a time to do an act entirely discon- 



nected from it, and injury results to another 
from such independent voluntary act, the 
servant may be liable, but the master is not. 
Friedman v. Martin, 43 Ga. App. 677, 160 
S.E. 126 (1931); Selman v. Wallace, 45 Ga. 
App. 688, 165 S.E. 851 (1932); Dawson 
Chevrolet Co. v. Ford, 47 Ga. App. 312, 170 
S.E. 306 (1933); Atlanta Hub Co. v. Jones, 47 
Ga. App. 778, 171 S.E. 470 (1933); 
Henderson v. Nolting First Mtg. Corp., 184 
Ga. 724, 193 S.E. 347 (1937); Jump v. Ander- 
son, 58 Ga. App. 126, 197 S.E. 644 (1938); 
Mulkey v. GrifTen Constr. Co., 58 Ga. App. 
808, 200 S.E. 163 (1938); Broome v. Prim- 
rose Tapestry Mills, 59 Ga. App. 70, 200 S.E. 
506 (1938); Southern Grocery Stores, Inc. v. 
Herring, 63 Ga. App. 267, 11 S.E.2d 57 
(1940); Falls v. Jacobs Pharmacy Co., 71 Ga. 
App. 547, 31 S.E.2d 426 (1944); Frazier v. 
Southern Ry., 200 Ga. 590, 37 S.E2d 774 
(1946); Parry v. Davison-Paxon Co., 87 Ga. 
App. 51, 73 S.E.2d 59 (1952); Jones v. Re- 
serve Ins. Co., 149 Ga. App. 176, 253 S.E. 2d 
849 (1979). 

For a tort committed by the servant en- 
tirely disconnected from the service or busi- 
ness of the master, the latter is not responsi- 
ble under the doctrine of respondeat 
superior, although it may occur during the 
general term of the servant's employment. 
American Sec. Co. v. Cook, 49 Ga. App. 723, 
176 S.E. 798 (1934); Southern Grocery 
Stores, Inc. v. Herring, 63 Ga. App. 267, 11 
S.E.2d 57 (1940); May v. Phillips, 157 Ga. 
App. 630, 278 S.E.2d 172 (1981). 

Servant's deviation for personal business 
slight. — If a servant, while engaged in the 
business of his master, makes a slight devia- 
tion for ends of his own, the master remains 
liable when the act was so closely connected 
with the master's affairs that, though the 
servant may derive some benefit from it, it 
may nevertheless fairly be regarded as within 
the course of his employment. Selman v. 
Wallace, 45 Ga. App. 688, 165 S.E. 851 
(1932); Jump v. Anderson, 58 Ga. App. 126, 
197 S.E. 644 (1938). 

Servant's personal motive merely addi- 
tional to master's business. — Where there 
has been a mingling of personal motive or 
purpose of the servant with the doing of his 
work for his employer, the presence of such 
a motive or purpose in the servant's mind 
does not affect the master's liability, where 
that which the servant does is in the line of 



190 



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51-2-2 



his duty and in the prosecution of the mas- 
ter's work. Jump v. Anderson, 58 Ga. App. 
126, 197 S.E. 644 (1938). 

Where a servant makes a deviation which 
results in injury to person or property, the 
master is liable unless the deviation was for 
purposes entirely personal to the servant. 
Where the latter is engaged in the business 
of his employer it is immaterial that he join 
with this some private purposes of his own. 
Johnson v. Franklin, 312 F. Supp. 310 (S.D. 
Ga. 1970). 

Master's liability reattaches when servant 
resumes duties. — Although a servant may 
have made a temporary departure from the 
service of his master, and in so doing may for 
the time have severed the relationship of 
master and servant, yet, where the object of 
the servant's departure has been accom- 
plished and he has resumed the discharge of 
his duties to the master, the responsibility of 
the master for the acts of the servant reat- 
taches. Atlanta Laundries, Inc. v. Goldberg, 
71 Ga. App. 130, 30 S.E.2d 349 (1944). 

The employer's liability for his employee's 
torts is suspended during the employee's 
"deviation" from his duties; upon the em- 
ployee's resumption of his work, the employ- 
er's liability reattaches. Bridger v. IBM Corp., 
480F.2d566 (5th Cir. 1973). 

Suit by servant's wife against master for 
servant's negligence not barred. — A wife 
who sustains personal injuries as the result of 
the negligence of the defendant's agent 
acting within the scope of his employment 
may sue the employer directly under the 
doctrine of respondeat superior, regardless 
of the fact that the defendant's agent who 
committed the tortious act is her husband, 
against whom she would be precluded from 
recovery by virtue of the marital relation- 
ship. Garnto v. Henson, 88 Ga. App. 320, 76 
S.E.2d636 (1953). 

If, in a case where the tortious act of the 
servant is the act of the master, the master is 
liable proximately even though the wife may 
not recover from the husband, the servant. 
She is merely denied a remedy; this does not 
destroy the right of action against the mas- 
ter. Bradley v. Tenneco Oil Co., 146 Ga. App. 
161, 245S.E.2d862 (1978). 

Master may remain liable for negligent 
selection or retention of servant. — Where a 
servant departs from the prosecution of his 
business and commits a tort while acting 



without the scope of his authority, the per- 
son employing him may still be liable if he 
failed to exercise due care in the selection of 
his servant; the same principle would be 
applicable if the employer retains the ser- 
vant after knowledge that the servant is of 
such temper and disposition that he is likely 
to injure others who are rightfully on the 
premises. Henderson v. Nolting First Mtg. 
Corp., 184 Ga. 724, 193 S.E. 347 (1937); 
Pope v. Seaboard Air Line R.R., 88 Ga. App. 
557, 77S.E.2d55 (1953). 

An employer's liability for negligent hiring 
or retention of an employee requires proof 
that the employer knew or should have 
known of the employee's violent and crimi- 
nal propensities. Odom v. Hubeny, Inc., 179 
Ga. App. 250, 345 S.E.2d 886 (1986). 

Master's liability to injured party's em- 
ployer. — This Code section accords an 
injured party a cause of action against the 
employer of a third-party tortfeasor, but does 
not extend that right to the injured party's 
employer. Unique Paint Co. v. Wm. F. 
Newman Co., 201 Ga. App. 463, 411 S.E.2d 
352 (1991). 

3. Scope of Employment 

Determining scope of employment. — 

The expressions "in the scope of his busi- 
ness" or "in the scope of his employment," 
or similar words, have sometimes been given 
too narrow a meaning. A master rarely com- 
mands a servant to be negligent, or employs 
him with the expectation that he will commit 
a negligent or willful tort: but if the act is 
done in the prosecution of the master's 
business — that is, if the servant is at the 
time engaged in serving the master — the 
latter will be liable. American Sec. Co. v. 
Cook, 49 Ga. App. 723, 176 S.E. 798 (1934); 
Jump v. Anderson, 58 Ga. App. 126, 197 S.E. 
644 (1938); Brown v. Union Bus Co., 61 Ga. 
App. 496, 6 S.E.2d 388 (1939); Southern 
Grocery Stores, Inc. v. Herring, 63 Ga. App. 
267, 11 S.E.2d57 (1940). 

If the act done by the employee is done in 
the prosecution of the business of the em- 
ployer, that is, if the employee is at the time 
of the commission of the wrongful act en- 
gaged in serving his employer, the wrongful 
act is done "in the prosecution and within 
the scope of the employer's business. 
Andrews v. Norvell, 65 Ga. App. 241, 15 



191 



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Torts of Servant (Cont'd) 

3. Scope of Employment (Cont'd) 

S.E.2d 808 (1941); DuPree v. Babcock, 100 
Ga. App. 767, 112 S.E.2d 415 (1959). 

If a fellow servant, in committing an act 
which resulted in injury to the plaintiff, was 
seeking to further the master's business, 
such an act would be within the scope of 
employment if it was not an extreme devia- 
tion from the employee's normal conduct. 
Such deviation from the normal course of 
conduct is not the same as deviation from 
the scope of employment, and it must occur 
within the scope of employment. Atlantic 
Coast Line R.R. v. Heyward, 82 Ga. App. 337, 
60S.E.2d641 (1950). 

The true test as to the scope of employ- 
ment is whether the purpose of the fellow 
servant in performing the act is to further 
the master's business, rather than whether 
or not it deviated in some degree from his 
normal conduct. Adantic Coast Line R.R. v. 
Heyward, 82 Ga. App. 337, 60 S.E.2d 641 
(1950). 

Misconduct outside scope of employment. 
— A boarding school's adult staff member's 
alleged misconduct of participating in a 
consensual sexual relationship with a 
13-year-old student was held to be consid- 
ered personal in nature and unrelated to the 
performance of the staff member's employ- 
ment duties. Doe v. Village of St. Joseph, 
Inc., 202 Ga. App. 614, 415 S.E.2d 56 (1992). 

If tort of employee is wholly personal to 
himself, it is not within scope of his employ- 
ment, and his employer is not required to 
anticipate the improbable, nor to take mea- 
sures to prevent a happening which no 
reasonable person would have expected. 
Community Theatres Co. v. Bentley, 88 Ga. 
App. 303, 76 S.E.2d 632 (1953). 

Disclosure of tax information. — Defen- 
dants were found to be acting within the 
scope of their employment when they alleg- 
edly disclosed confidential tax returns to 
third parties in their attempt to collect plain- 
tiffs' taxes or to collect information for tax 
related purposes. Retirement Care Assocs. v. 
U.S./I.R.S., 1 F. Supp. 2d 1472 (N.D. Ga. 
1998). 

Horseplay with employees to keep them 
energized. — Where automobile salesman 
was injured while "finger-wrestling" with his 
supervisor, testimony that the supervisor be- 



lieved that engaging in occasional horseplay 
with employees to keep then "pumped up" 
constituted a part of his supervisory respon- 
sibilities, created a material factual conflict, 
precluding summary judgment for the em- 
ployer, on the issue of whether the supervi- 
sor's alleged misconduct occurred within 
the scope of his employment. Gaylor v. Jay & 
Gene's Chrysler-Plymouth-Dodge, Inc., 183 
Ga. App. 255, 358 S.E.2d 655 (1987). 

Hugging of patron by a bar waitress was 
done for purely personal motives and her 
employer was not liable for injuries caused 
to the patron when he fell as the result of the 
waitress's action. Morrison v. Anderson, 221 
Ga. App. 396, 471 S.E.2d 329 (1996). 

Employee forging signature on contract. 
— Employer was not liable where the act of 
an employee forging a signature of a pur- 
ported customer to a company contract was 
not within the scope of the servant's employ- 
ment. Wittig v. Spa Lady, Inc., 182 Ga. App. 
689, 356 S.E.2d 665 (1987). 

Servant leaving work held to be in scope 
of employment. — See Fred A. York, Inc. v. 
Moss, 176 Ga. App. 350, 335 S.E.2d 618 
(1985). 

Drunk while driving company car. — Em- 
ployee was not acting within the scope of his 
employment when he fell asleep at the wheel 
and ran over two pedestrians, while driving 
home inebriated in a company car after 
meeting five other employees at a restau- 
rant/bar to celebrate the impending mar- 
riage of another employee. Divecchio v. 
Mead Corp., 184 Ga. App. 447, 361 S.E.2d 
850 (1987). 

4. Servant's Intentional Torts 

Master liable even though servant's tort is 
willful. — A principal may be liable for the 
willful tort of his agent, done in the prose- 
cution and within the scope of his business, 
although it is not expressly shown that he 
either commanded the commission of the 
willful act or assented to it. Planters Cotton 
Oil Co. v. Baker, 181 Ga. 161, 181 S.E. 671 
(1935); Greenbaum v. Brooks, 110 Ga. App. 
661, 139S.E.2d432 (1964). 

A master is liable for the willful torts of a 
servant, committed in the course of the 
servant's employment, just as though the 
master had himself commanded them. 
Gomez v. Great Ad. & Pac. Tea Co., 48 Ga. 
App. 398, 172 S.E. 750 (1934); Brown v. 



192 



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IMPUTABLE NEGLIGENCE 



51-2-2 



Union Bus Co., 61 Ga. App. 496, 6 S.E.2d 
388 (1939); Frazier v. Southern Ry., 200 Ga. 
590, 37S.E.2d774 (1946). 

Though a tort committed by a servant 
upon another be willful, entirely unjustified, 
and done in great anger, the master is nev- 
ertheless liable in damages therefore if it be 
committed by his command or in the pros- 
ecution and within the scope of his business. 
Southern Grocery Stores, Inc. v. Herring, 63 
Ga. App. 267, 11 S.E.2d 57 (1940). 

An employer is liable for the willful or 
malicious acts of his servants done in the 
course of his employment and within its 
scope although they are not done by the 
express direction of the employer or with his 
assent. Andrews v. Norvell, 65 Ga. App. 241, 
15S.E.2d808 (1941). 

A master is liable for the willful torts of his 
servant acting in the prosecution and within 
the scope of the master's business, and this is 
true even though the servant, at the time of 
the commission of such tort, may evidence 
anger, malice, or ill will. Frazier v. Southern 
Ry., 200 Ga. 590, 37 S.E.2d 774 (1946); 
Gaylor v. Jay 8c Gene's 

Chrysler-Plymouth-Dodge, Inc., 183 Ga. 
App. 255, 358 S.E.2d 655 (1987). 

A master may be liable for even the willful 
and malicious torts of his servant, but to 
sustain liability it must appear that the tort 
was committed within the scope of the mas- 
ter's business. Community Theatres Co. v. 
Bentley, 88 Ga. App. 303, 76 S.E.2d 632 
(1953). 

The master is liable for the tort of his 
servant committed in the performance of 
his master's business, even where the tort is a 
willful one. Carmichael v. Silvers, 90 Ga. 
App. 804, 84 S.E.2d 668 (1954). 

The fact that the alleged tort was inten- 
tional rather than negligent does not, in and 
of itself, preclude the doctrine of respondeat 
superior from being considered applicable. 
Sparlin Chiropractic Clinic v. Tops Person- 
nel Servs., Inc., 193 Ga. App. 181, 387 S.E.2d 
411 (1989). 

Master is liable for the torts of his servants 
although torts may amount to a crime. 
Carmichael v. Silvers, 90 Ga. App. 804, 84 
S.E.2d668 (1954). 

The fact that an act itself may be criminal 
does not relieve the employer of civil liability 
for damages caused thereby, when the act is 
done by his employees at his command or 



within the scope of their employment. 
Coleman v. Nail, 49 Ga. App. 51, 174 S.E. 178 
(1934). 

If the criminal act of the servant was done 
within the range of his employment and for 
the purpose of accomplishing the autho- 
rized business of the master, the latter is 
liable. Pope v. Seaboard Air Line R.R., 88 Ga. 
App. 557, 77 S.E.2d 55 (1953). 

The mere fact that a tortious act of an 
employee amounts to a crime does not, per 
se, relieve his employer from liability. Sexton 
Bros. Tire Co. v. Southern Burglar Alarm 
Co., 153 Ga. App. 413, 265 S.E.2d 335 
(1980). 

Master may be held responsible for assault 
and battery committed by his servant acting 
within the scope of employment. Greenfield 
v. Colonial Stores, Inc., 110 Ga. App. 572, 
139 S.E.2d 403 (1964). 

Where a willful and unjustified assault is 
committed by a servant within the scope of 
his employment, the master is liable for the 
injury thus inflicted under the doctrine of 
respondeat superior. Broome v. Primrose 
Tapestry Mills, 59 Ga. App. 70, 200 S.E. 506 
(1938). 

Where an act of a servant in committing 
an assault is committed in the prosecution of 
his master's business or the said act is within 
the scope of the servant's employment, the 
master is liable in tort. Frazier v. Southern 
Ry., 200 Ga. 590, 37 S.E.2d 774 (1946). 

The theory that one may be an employee 
one minute and the very next minute be- 
come enraged, commit an assault and bat- 
tery and in that act be not an employee is too 
fine spun a distinction. Gilbert v. Progressive 
Life Ins. Co., 79 Ga. App. 219, 53 S.E.2d 494 
(1949). 

Company not liable for agent's assault 
motivated by personal reasons. — A com- 
pany is not liable for damages resulting from 
an assault and battery inflicted by its agent 
upon a third person, when it appears that 
the difficulty which gave rise to the beating 
arose out of a personal quarrel, and that the 
agent, so far as related to his participation 
therein, was acting upon his individual re- 
sponsibility and not within the scope of the 
business of his agency as an employee of the 
company. Jones v. Reserve Ins. Co., 149 Ga. 
App. 176, 253 S.E.2d 849 (1979). 

The mere fact that an assault occurs dur- 
ing a time of ostensible employment is not 



193 



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Torts of Servant (Cont'd) 

4. Servant's Intentional Torts (Cont'd) 

dispositive of the question of scope of em- 
ployment. Where an assault is unrelated to 
the employee's task and is completely per- 
sonal in nature, no genuine issue of material 
fact remains as to a claim based upon a 
theory of respondeat superior, and an em- 
ployer is entitled to judgment on this issue as 
a matter of law. Southern Bell Tel. 8c Tel. Co. 
v. Sharara, 167 Ga. App. 665, 307 S.E.2d 129 
(1983). 

5. Principal — Agent Liability 

Principal is liable for tort of his agent 
within scope of his business. American Cas. 
Co. v. Windham, 26 F. Supp. 261 (M.D. Ga.), 
aff'd, 107 R2d 88 (5th Cir. 1939), cert, 
denied, 309 U.S. 674, 60 S. Ct. 714, 84 L. Ed. 
1019 (1940); DeDaviess v. U-Haul Co., 154 
Ga. App. 124, 267 S.E.2d 633 (1980). 

Agent not liable for negligence of princi- 
pal. — This section provides for the liability 
of the principal for the acts of the agent by 
his command or in the prosecution and 
within the scope of his business, whether the 
same shall be by negligence or voluntary, but 
it does not conversely provide that the agent 
is liable for the neglect or default of the 
principal. Crosby v. Calaway, 65 Ga. App. 
266, 16S.E.2d 155 (1941). 

Agent is not liable for failure of principal 
to discharge affirmative duties which princi- 
pal may owe, but principal is liable for 
carelessness of agent. Crosby v. Calaway, 65 
Ga. App. 266, 16 S.E.2d 155 (1941); Verddier 
v. Neal Blun Co., 128 Ga. App. 321, 196 
S.E.2d469 (1973). 

Acts for agent's personal benefit. — An 
employer was not vicariously liable for a 
broker's acts in fraudulently inducing plain- 
tiffs to invest in a nonexistent fund which he 
falsely represented as a fund of the em- 
ployer, since the acts were committed for the 
broker's personal benefit, involved no par- 
ticipation by the employer, and were of no 
benefit to the employer. Hobbs v. Principal 
Fin. Group, Inc., 230 Ga. App. 410, 497 
S.E.2d243 (1998). 

The trial court did not err in granting 
summary judgment to an insurance agency 
on plaintiff's fraud claim because the acts of 
the agency's manager in accepting plaintiff's 
premiums without obtaining insurance were 



personal acts for his own benefit, involved 
no participation by the agency, and were of 
no benefit to the agency. GFA Bus. Solutions, 
Inc. v. Greenway Ins. Agency Inc., 243 Ga. 
App. 35, 531 S.E.2d 134 (2000). 

There should be no distinction between 
the relationships of principal and agent and 
that of master and servant, so as to make 
different rules of liability apply, according to 
the nature of the relationship. Planters Cot- 
ton Oil Co. v. Baker, 181 Ga. 161, 181 S.E. 
671 (1935). 

Whether tort-feasor was an agent or a 
servant makes no difference in applying the 
doctrine of respondeat superior; if his 
wrongful acts were in the prosecution of the 
defendant's business and within the scope of 
the employment, then the defendant is lia- 
ble for such tortious conduct of his servant 
or agent, as the case may be. Prince v. 
Brickell, 87 Ga. App. 697, 75 S.E.2d 288 
(1953). 

Contrast to federal law. — Under Georgia 
law, in a true principal/agent relationship, 
the principal is automatically liable for the 
negligence of an agent acting within the 
scope of the agency. The Comprehensive 
Environmental Response, Compensation, 
and Liability Act, 42 U.S.C. § 9601 et seq., in 
contrast, contemplates that a response ac- 
tion contractor will be independendy liable 
for negligence or other tortious behavior 
and that the United States may assume the 
liability in certain circumstances. Amtreco, 
Inc. v. O.H. Materials, Inc., 802 F. Supp. 443 
(M.D. Ga. 1992). 

This section is not contrary to § 10-6-61 
because the latter properly construed does 
not mean the principal is not liable for the 
willful trespass of his agent unless done by 
his express command or assent, but he may 
be liable if the trespass was committed by his 
implied command or implied assent, and if 
committed within the scope of the agency, 
the implication will arise as a matter of law. 
Planters Cotton Oil Co. v. Baker, 181 Ga. 
161, 181 S.E. 671 (1935). 

Principal's consent generally implied. — 
Since the determinative question in a case of 
a principal's liability is whether the act of the 
agent is done in the prosecution and within 
the scope of the principal's business, either 
command or assent can be implied. 
Greenbaum v. Brooks, 1 10 Ga. App. 661, 139 
S.E.2d432 (1964). 



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If a willful trespass is committed by an 
agent within the scope of the agency, the 
assent of the principal will be implied as a 
matter of law, and in such case it is unnec- 
essary to make proof of an express com- 
mand or assent, and the principal may be 
liable for the willful tort of the agent, done 
in the prosecution and within the scope of 
the principal's business. International Bhd. 
of Boilermakers v. Newman, 116 Ga. App. 
590, 158S.E.2d298 (1967). 

Principal may be liable if the trespass was 
committed by his implied command or im- 
plied assent; and if committed within the 
scope of the agency, the implication will 
arise as a matter of law. Melton v. 
LaCalamito, 158 Ga. App. 820, 282 S.E.2d 
393 (1981). 

Ordinarily, agent is not liable to third 
persons for acts of nonfeasance. Crosby v. 
Calaway, 65 Ga. App. 266, 16 S.E.2d 155 
(1941). 

Subagents hired by agents. — Unless a 
primary agent, expressly or impliedly autho- 
rized by the principal as owner of an auto- 
mobile to drive it on the business of the 
owner, is himself expressly or impliedly au- 
thorized to appoint a subagent for that pur- 
pose, the owner will not be liable for the 
negligence of the latter. Samples v. Shaw, 47 
Ga. App. 337, 170 S.E. 389 (1933). 

A principal may employ an agent and 
permit the employment by him of subagents 
or servants to aid him in carrying on the 
business, without becoming liable for the 
acts of the subagents or servants. Sinclair 
Ref. Co. v. Veal, 51 Ga. App. 755, 181 S.E. 705 
(1935). 

If a servant, who is employed to do certain 
work for his master, employs another person 
to assist him, the master is liable for the 
negligence of the assistant only when the 
servant had authority, express or implied, to 
employ him, or when the act of employment 
is ratified by the master. Carter v. Bishop, 209 
Ga. 919, 76 S.E.2d 784 (1953). 

6. Independent Contractors 

Employer not liable for torts of indepen- 
dent contractor. — Principle of law that a 
master or employer is liable for a tort com- 
mitted by his servant or employee about the 
master's business or within the course of the 
employee's employment is not applicable in 
a case where the relation between the parties 



is that of principal or employer and indepen- 
dent contractor. Whitehall Chevrolet Co. v. 
Anderson, 53 Ga. App. 406, 186 S.E. 135 
(1936). 

Distinguishing independent contractor 
from servant. — The real test by which to 
determine whether a person was acting as 
the servant of another at the time of the 
infliction of an injury by him is to ascertain 
whether at the particular time when the 
injury was inflicted he was subject to the 
other person's orders and control, and was 
liable to be discharged from the particular 
employment for disobedience of orders or 
misconduct. Bibb Mfg. Co. v. Souther, 52 Ga. 
App. 722, 184 S.E. 421 (1936); Graham v. 
Cleveland, 58 Ga. App. 810, 200 S.E. 184 
(1938). 

The test to be applied in determining 
whether the relation is that of a servant or 
independent contractor lies in whether the 
contract of employment gives the employer 
the right to control the time and manner of 
executing the work, or he interferes and 
assumes such control, as distinguished from 
the right merely to require results in confor- 
mity to the contract. Whitehall Chevrolet 
Co. v. Anderson, 53 Ga. App. 406, 186 S.E. 
135 (1936); Morris v. Constitution Publish- 
ing Co., 84 Ga. App. 816, 67 S.E.2d 407 
(1951); Hotel Storage, Inc. v. Fesler, 120 Ga. 
App. 672, 172 S.E.2d 174 (1969); Buchanan 
v. Canada Dry Corp., 138 Ga. App. 588, 226 
S.E.2d 613 (1976); Sloan v. Hobbs Sporting 
Goods Shop, 145 Ga. App. 255, 243 S.E.2d 
673 (1978). 

The test in determining whether one is a 
servant or independent contractor is 
whether the employer had the right, under 
the employment, taking into consideration 
the circumstances and situation of the par- 
ties, and the work, to so control and direct 
him in his work. Sparlin Chiropractic Clinic 
v. Tops Personnel Servs., Inc., 193 Ga. App. 
181,387S.E.2d411 (1989). 

Workers' compensation. — Section 
34-9-11 of the Workers' Compensation Act 
expressly abrogated the vicarious liability 
provisions of this section and § 51-2-5 which 
would have otherwise permitted the parents 
of an employee of an independent subcon- 
tractor to bring a tort action against the 
general contractor/statutory employer. 
McCorkle v. United States, 737 F.2d 957 
(11th Cir. 1984). 



195 



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Torts of Servant (Cont'd) 

7. Borrowed Servants 

Servant loaned for particular purpose be- 
comes servant of borrower. — When one 
lends his servant to another for a particular 
employment, the servant will be dealt with as 
a servant of the man to whom he is lent 
although he remains the general servant of 
the person who lent him. Hotel Storage, Inc. 
v. Fesler, 120 Ga. App. 672, 172 S.E.2d 174 
(1969). 

Special master is alone liable to third 
persons for injuries caused by such wrongful 
acts as special servant may commit in course 
of his employment. Bibb Mfg. Co. v. Souther, 
52 Ga. App. 722, 184 S.E. 421 (1936). 

Determining status as borrowed servant. 
— The test to be applied in ascertaining if 
one is a loaned servant is: (1) that the special 
master must have complete control and di- 
rection of the servant for the occasion; (2) 
that the general master must have no such 
control; (3) that the special master must 
have the exclusive right to discharge the 
servant, to put another in his place or to put 
him to other work. Control is the determi- 
native factor. Hotel Storage, Inc. v. Fesler, 
120 Ga. App. 672, 172 S.E.2d 174 (1969). 

Mere performance of work beneficial to 
third person insufficient. — Mere fact that a 
servant is, at the time of an injury, perform- 
ing work beneficial to a third person, does 
not render him the servant of such third 
person and make such third person respon- 
sible for his negligent acts. Graham v. Cleve- 
land, 58 Ga. App. 810, 200 S.E. 184 (1938). 

Change of relationship must be clear. — 
To show that the general employee or agent 
of one person has become the employee of 
another, with the effect of ending the gen- 
eral employer's responsibility for the acts of 
his agent, the new relation of the parties 
must clearly appear. Fleming v. E.I. Du Pont 
De Nemours & Co., 89 Ga. App. 837, 81 
S.E.2d529 (1954). 

8. Joint and Several Liability 

Servant, as wrongdoer, is liable individu- 
ally for tort committed within scope of his 
master's business. Giles v. Smith, 80 Ga. App. 
540, 56S.E.2d 860 (1949). 

When a servant assumes to act for his 
master, his duty to third persons, so far as it 



relates to the proper performance of the 
obligations assumed for and in behalf of the 
master, is, to the extent of such assumption 
of duty, the same as that of the master, and 
his failure to perform makes him liable as 
the master, provided, of course, his failure to 
perform can be said to be the proximate 
cause of the injury. Atlantic Coast Line R.R. 
v. Knight, 48 Ga. App. 53, 171 S.E. 919 
(1933), aff'd, 73 F.2d 76 (5th Cir. 1934). 

Master and his servant may be jointly sued 
for damages resulting solely from negligence 
of servant, in which case the liability of the 
master and of the servant is joint and several. 
Giles v. Smith, 80 Ga. App. 540, 56 S.E.2d 
860 (1949). 

Master not derivatively liable unless ser- 
vant liable. — Where the liability, if any, of 
the master to a third person is purely deriv- 
ative and dependent entirely upon the prin- 
ciple of respondeat superior, and although 
not technically a joint tort-feasor, the master 
may be sued alone or jointly with the servant 
but a judgment in favor of the servant on the 
merits (and by analogy, a release of the 
servant from liability) will bar an action 
against the master, where injury and damage 
are the same. Giles v. Smith, 80 Ga. App. 540, 
56S.E.2d860 (1949). 

Where, under the doctrine of respondeat 
superior, an action for damages against a 
master and servant as codefendants is based 
solely on the negligence of the servant, a 
verdict absolving the servant, but holding 
the master liable is contradictory and is 
therefore a nullity. Moffett v. McCurry, 84 
Ga. App. 853, 67 S.E.2d 807 (1951). 

Where no actionable tort is committed 
such that the plaintiff might recover from 
the speaker, he cannot recover against the 
employer. Brown v. Colonial Stores, Inc., 110 
Ga. App. 154, 138 S.E.2d 62 (1964). 

Where the jury returned a verdict in favor 
of the individuals upon whose acts corporate 
liability depended, there was no basis for a 
verdict against the corporations. ESAB 
Distribs. S.E., Inc. v. Flamex Indus., Inc., 243 
Ga. 355, 254 S.E.2d 328 (1979). 

Settlement with servant releases master. 
— Where in an action for damages growing 
out of a collision between the truck of the 
plaintiffs, driven by their servant, and the 
truck of the defendants, driven by their 
servant, which resulted in certain property 
damage to the plaintiffs' truck and certain 



196 



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51-2-2 



personal injuries to the defendants' servant, 
the plaintiffs and the defendants' servant 
enter into an agreement, whereby the defen- 
dants' servant for and in consideration of 
the payment of a certain sum by the plain- 
tiffs, releases the plaintiffs from all claims, 
anticipated and unanticipated, growing out 
of the collision, the release constitutes a 
settlement of the plaintiffs' claims against 
the servant, and a settlement of the plain- 
tiffs' claims against the servant necessarily 
constitutes a release of the defendants as 
there can be only one satisfaction of the 
same injuries. Giles v. Smith, 80 Ga. App. 
540, 56 S.E.2d 860 (1949). 

Master may be independently liable for 
own negligence. — The rule that, where an 
action for damages against a master and 
servant as codefendants is based solely on 
the negligence of the servant, holding the 
master liable is contradictory and is there- 
fore a nullity, has no application where there 
is any evidence authorizing the jury to find 
that the master was negligent independently 
of his servant-codefendants. Moffett v. 
McCurry, 84 Ga. App. 853, 67 S.E.2d 807 
(1951). 

Nature of judgment where master and 
servant jointly sued. — The same principles 
apply to a master and servant when sued 
jointly in an action based solely on the 
negligence of the servant as would apply in 
cases of joint liability against joint 
tort-feasors; the verdict and judgment must 
be valid against both or it is valid against 
neither. Medlin v. Church, 157 Ga. App. 876, 
278S.E.2d747 (1981). 

9. Pleading and Practice 

Basic elements of pleading. — A principal 
or master being responsible for the negli- 
gent acts of his agent or servant only when 
done by command or within the scope of the 
employment, it is necessary, in an action 
seeking to charge one for the acts of another 
upon the theory that the latter was agent for 
the former, that the petition should disclose, 
either expressly or by necessary implication, 
not only the existence of the agency, but also 
the connection of the act with the employ- 
ment. Bates v. Southern Ry., 52 Ga. App. 576, 
183 S.E. 819 (1936). 

General averment that act is within scope 
of employment sufficient for pleading pur- 
poses. — A general averment in effect that 



the act of the employee was committed in 
the prosecution of the employers business 
and within the scope of the employee's 
authority states traversable facts rather than 
a mere conclusion of the law. Gilbert v. 
Progressive Life Ins. Co., 79 Ga. App. 219, 53 
S.E.2d 494 (1949). 

Where the plaintiff alleges by a simple 
direct statement the fact that the wrongful 
act was the act of the defendant's servant 
and was committed in the prosecution of the 
principal's business and within the scope of 
the employee's authority, his petition is not 
subject to general or special demurrer (now 
motion to dismiss). Candace, Inc. v. Newton, 
91 Ga. App. 357, 85 S.E.2d 616 (1955). 

Pleading agency. — One of the ways of 
pleading that agency existed so as to make 
alleged principal responsible for the wrong- 
ful acts of the agent is to allege by a simple 
direct statement that the defendant princi- 
pal by its agent committed the wrongful act, 
and this as against a general or special 
demurrer (now motion to dismiss) would be 
sufficient. Garver v. Smith, 90 Ga. App. 892, 
84 S.E.2d 693 (1954). 

One way of alleging agency so as to bind 
the principal for the acts of the agent is to 
allege that the act was committed by the 
agent as agent for the principal and within 
the scope of his employment. Greenfield v. 
Colonial Stores, Inc., 110 Ga. App. 572, 139 
S.E.2d 403 (1964). 

General allegation of agency will yield to 
specific allegations of fact which in them- 
selves negative agency, or negative agency 
for the purpose and particular set of facts 
under which it is sought to hold the master 
on the doctrine of respondeat superior. 
Community Theatres Co. v. Bentley, 88 Ga. 
App. 303, 76 S.E.2d 632 (1953). 

While it is true that, where a general 
averment that a tort was committed within 
the scope of an employee's authority is am- 
plified by specific allegations which plainly 
and distinctly negative the general allegation 
that the act or acts complained of were in 
the prosecution of the employer's business 
and within the scope of the employee's 
authority, the specific allegations will prevail. 
Gilbert v. Progressive Life Ins. Co., 79 Ga. 
App. 219, 53 S.E.2d 494 (1949). 

Petition against master fatally defective if 
no allegation made that servant acted within 
scope of employment. — Petition which 



197 



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51-2-2 



Torts of Servant (Cont'd) 

9. Pleading and Practice (Cont'd) 

seeks to charge the defendant with liability 
for the act of an agent is fatally defective 
where it contains no allegation that the 
servant was acting within the scope of his 
employment or in the prosecution of his 
employer's business, and did not show that 
the nature of the agent's service was such 
that his authority to perform the act on 
behalf of his principal could be legitimately 
inferred. Sherwin-Williams Co. v. St. 
Paul-Mercury Indem. Co., 97 Ga. App. 298, 
102S.E.2d919 (1958). 

No need to prove command or assent by 
master. — If the tort of the agent is commit- 
ted in the prosecution and within the scope 
of the principal's business, it is done with the 
implied command or assent of the principal, 
and in such case it is unnecessary to make 
proof of an express command or assent. 
Planters Cotton Oil Co. v. Baker, 181 Ga. 
App. 161, 181 S.E. 671 (1935). 

10. Jury Instructions 

Charge to jury. — Where the charge lim- 
ited the accountability of the master under 
this section for the negligence of the servant 
to his acts when done "as the servant or 
agent of the defendant," this should be 
taken as the equivalent of a statement that 
the acts must have been done within the 
scope of the master's business. Fielder v. 
Davison, 139 Ga. 509, 77 S.E. 618 (1913); 
Collier v. Schoenberg, 26 Ga. App. 496, 106 
S.E. 581 (1921). 

The negligence of the defendant's ser- 
vant, if any, being imputable to him under 
the undisputed pleadings and evidence, 
there was no error in a reference by the 
court in his charge to the "negligence of the 
defendant", rather than "negligence of the 
driver of defendant's vehicle." Chancey v. 
Shirah, 96 Ga. App. 91, 99 S.E.2d 365 
(1957). 

1 1 . Jury Questions 

Whether servant acted within scope of 
employment is jury question. — The ques- 
tion of whether a servant by whose act 
another is injured was acting within the 
scope of his employment is ordinarily one to 
be determined by the jury. Century Bldg. 



Co. v. Lewkowitz, 1 Ga. App. 636, 57 S.E. 
1036 (1907); Friedman v. Martin, 43 Ga. 
App. 677, 160 S.E. 126 (1931). 

Whether or not the servant was at the time 
acting within the scope of his employment is 
generally a question of fact for the jury. 
Atlanta Hub Co. v. Jones, 47 Ga. App. 778, 
171 S.E. 470 (1933). 

Whether the agent was acting within the 
scope of his employment when he commit- 
ted a tortious act is a question of fact for the 
jury. Personal Fin. Co. v. Whiting, 48 Ga. 
App. 154, 172 S.E. Ill (1933); Digsby v. 
Carroll Baking Co., 76 Ga. App. 656, 47 
S.E.2d 203 (1948); Clark v. Chorey, Taylor & 
Feil, PC, 240 Ga. App. 232, 522 S.E.2d 472 
(1999). 

The question of whether or not the ser- 
vant at the time of an injury to another was 
acting in the prosecution of his master's 
business and in the scope of his employment 
is for determination by the jury except in 
plain and indisputable cases. Jump v. Ander- 
son, 58 Ga. App. 126, 197 S.E. 644 (1938). 

Except in plain and palpable cases, it is for 
the jury to decide the question whether the 
servant was acting within the scope of and in 
furtherance of his employment when he 
committed the tortious act in question. 
Southern Grocery Stores, Inc. v. Herring, 63 
Ga. App. 267, 11 S.E.2d 57 (1940). 

Whether or not an employee at the time 
of an assault and battery on the plaintiff, was 
acting in the scope of his employment and in 
the prosecution of the employers' business is 
a question for the jury. Gilbert v. Progressive 
Life Ins. Co., 79 Ga. App. 219, 53 S.E.2d 494 
(1949). 

Where there is a deviation the question 
should ordinarily be submitted to the jury as 
to whether or not the deviation from the 
master's business was so slight as not to affect 
the master's responsibility for the negligent 
act. Cooley v. Tate, 87 Ga. App. 1, 73 S.E.2d 
72 (1952). 

Scope of employment may be matter of 
law in plain cases. — While it is true that the 
question of whether a servant was acting 
within the scope of his employment at the 
time of an alleged assault is generally for the 
jury, yet where it is plain and palpable that at 
the time of the assault he was not so acting, 
the appellate court may so determine, as a 
matter of law. Broome v. Primrose Tapestry 
Mills, 59 Ga. App. 70, 200 S.E. 506 (1938). 



198 



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IMPUTABLE NEGLIGENCE 



51-2-2 



Knowledge of sexual harassment and 
rape. — Disputed issues of material fact 
precluded the grant of summary judgment 
on the plaintiff's claim of intentional inflic- 
tion of emotional distress under the doctrine 
of respondeat superior where the employer 
was possessed of knowledge of the accusa- 
tion of sexual harassment and rape of the 
plaintiff by her co-employee, and the em- 
ployer failed to report or correct the con- 
duct, therefore essentially ratifying the 
co-employee's actions. Simon v. Morehouse 
Sch. of Medicine, 908 F. Supp. 959 (N.D. Ga. 
1995). 

Torts of Servant — Specific Cases 

1. Automobiles 

General rules of respondeat superior ap- 
plicable to suits based on servant's operation 
of motor vehicle. — If an owner of an 
automobile is sued for damages on account 
of an injury caused by the negligent opera- 
tion of it by his chauffeur, the rules of law 
touching master and servant will ordinarily 
be applied for the determination of the 
liability of the former for the act of the latter. 
Cooley v. Tate, 87 Ga. App. 1, 73 S.E.2d 72 
(1952). 

Owner of vehicle also liable for negli- 
gently permitting unqualified person to use 
it. — Aside from the relation of master and 
servant, the owner of an automobile may be 
rendered liable for injuries inflicted by its 
operation by one whom he has permitted to 
drive the same on the ground that such 
person, by reason of his age or want of 
experience, or his physical or mental condi- 
tion, or his known habit of recklessness, is 
incompetent to safely operate the machine. 
Graham v. Cleveland, 58 Ga. App. 810, 200 
S.E. 184 (1938). 

Master not liable where servant uses vehi- 
cle for personal reasons not within scope of 
employment. — Where an employee, in- 
stead of returning "immediately" to his em- 
ployer's place of business, as it was his duty to 
do, proceeded in the opposite direction 
from the place of business of his employer 
on what he termed a "joy ride," the enter- 
prise was purely the private affair of the 
employee, and one which bore no relation 
whatever to the prosecution of his employ- 
er's business. Dawson Chevrolet Co. v. Ford, 
47 Ga. App. 312, 170 S.E. 306 (1933). 



Where the servant is not permitted to use 
the car for his own benefit during the inter- 
val before he is required to act for the owner, 
and the servant uses the car of his employer 
for his own personal business during this 
interval, the employer is not liable. 
Reddy-Waldheuer-Maffett Co. v. Spivey, 53 
Ga. App. 117, 185 S.E. 147 (1936). 

The owner of an automobile is not liable 
for injuries caused by his chauffeur's negli- 
gent operation of the car at a time when the 
conduct of the chauffeur took him outside 
the scope of his employment and when his 
conduct was a complete departure instead of 
a "deviation" or "detour" incidental to his 
employment. Reddy-Waldhauer-Maffett Co. 
v. Spivey, 53 Ga. App. 117, 185 S.E. 147 
(1936). 

The fact that the defect in the car was that 
it did not have a rear red light attached, even 
if known to the owner, would not in this case 
create a liability on the part of the owner, 
where the owner on the night in question 
did not know the employee would use the 
car. Reddy-Waldhauer-Maffett Co. v. Spivey, 
53 Ga. App. 117, 185 S.E. 147 (1936). 

The owner of an automobile is not liable 
for an injury from negligent driving thereof 
by an employee who was using the car for a 
private purpose entirely disconnected from 
the owner's business. Holland v. Cooper, 192 
F.2d214 (5th Cir. 1951). 

Where a servant, while not engaged in the 
performance of his master's business, and 
during a time when he is free to engage in 
his own pursuits, uses his master's automo- 
bile for his own purposes (although he does 
so with the knowledge and consent of his 
master), and, while so using it, negligently 
injures another by its operation, the master 
is not liable. Cooley v. Tate, 87 Ga. App. 1, 73 
S.E.2d 72 (1952); May v. Phillips, 157 Ga. 
App. 630, 278 S.E.2d 172 (1981). 

If, while a servant is not engaged in the 
performance of his master's business, and 
during a time when he is free to engage in 
his own pursuits, his master lends him an 
automobile, and while he is using it for his 
own pleasure, disconnected from any busi- 
ness of the master, he negligently injures 
another by its operation, the servant will 
stand in the same position as would another 
borrower; and the master will not be liable 
for his acts, on the doctrine of respondeat 
superior. Cooley v. Tate, 87 Ga. App. 1, 73 
S.E.2d 72 (1952). 



199 



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TORTS 



51-2-2 



Torts of Servant — Specific 

Cases (Cont'd) 
1. Automobiles (Cont'd) 

When a servant is permitted by the master 
to use a vehicle for the servant's own plea- 
sure or business, wholly disconnected from 
that of the master, and a third party is 
injured by the servant's negligent operation 
of it while on his own mission, the master 
cannot be held liable under the doctrine of 
respondeat superior. Harper v. Brown, 122 
Ga. App. 316, 176 S.E.2d 621 (1970). 

Servant acting outside the scope of em- 
ployment because acting under direction of 
another. — Defendant owner of truck was 
not liable for injury suffered by plaintiff 
repairman who was injured while repairing 
truck's motor when the employee of the 
defendant started the motor, thereby caus- 
ing the injury, as the employee was not at the 
time acting as a servant or agent of the 
defendant, but was acting under the direc- 
tion of the plaintiff and was his agent or 
servant to manipulate the truck under the 
direction so as to facilitate his work in mak- 
ing the repairs on the truck. Carstarphen v. 
Ivey, 66 Ga. App. 865, 19 S.E.2d 341 (1942), 
criticized, Griffin v. Hardware Mut. Ins. Co., 
93 Ga. App. 801, 92 S.E.2d 871 (1956). 

Servant engaging substitute driver without 
permission. — Where one who is employed 
to drive a motor vehicle, without the consent 
of and against specific instructions of the 
master engages a substitute driver, the mas- 
ter is not liable for the negligence of the 
substitute driver unless the act of the servant 
employing the substitute driver be ratified by 
the master. Carter v. Bishop, 209 Ga. 919, 76 
S.E.2d 784 (1953). 

Unless a primary agent, expressly or 
impliedly authorized by the principal as 
owner of an automobile to drive it on the 
business of the owner, is himself expressly or 
impliedly authorized to appoint a subagent 
for that purpose, the owner will not be liable 
for the negligence of the latter. Carter v. 
Bishop, 209 Ga. 919, 76 S.E.2d 784 (1953). 

Driver not servant to owner. — Where the 
owner of an automobile delivers his car to 
the agent of another, who is engaged in the 
operation of a parking lot for automobiles 
for hire, for the purpose of parking the car 
in said lot a short distance away, such agent 
does not become the servant of both the 



owner of the car and the owner and operator 
of such parking lot so as to make them 
joindy liable for his negligent operation of 
said car, nor does the petition set out a joint 
cause of action against such defendants by 
reason of an allegation that both of said 
defendants "knew or could have known" 
that said agent was a reckless and incompe- 
tent driver, but nevertheless permitted and 
directed him to operate the car. Graham v. 
Cleveland, 58 Ga. App. 810, 200 S.E. 184 
(1938). 

Under the facts the person who was oper- 
ating automobile at the time of the collision 
was the servant and employee of manager of 
service station, and was not the servant, 
employee, or agent of the defendant owner 
of the car, to whom it was being delivered 
following its washing at the service station, 
and defendant owner was therefore not lia- 
ble for damages caused by the collision. 
Simmons v. Beatty, 61 Ga. App. 759, 7 S.E.2d 
613 (1940). 

Employee acting as independent contrac- 
tor. — An automobile salesman employed 
on a commission basis, who operates his own 
automobile to aid him in carrying on his 
employment, and whose movements are not 
controlled by his employer, is, with respect to 
the operation of his automobile, an indepen- 
dent contractor, and the employer is not 
liable in damages for an injury to a person 
who was riding in the car with the employee 
and to whom he was trying to sell an auto- 
mobile of his employer at the time, although 
the injury was caused by the negligence of 
the employee in the operation of his auto- 
mobile. Whitehall Chevrolet Co. v. Ander- 
son, 53 Ga. App. 406, 186 S.E. 135 (1936). 

Where defendant company did not have 
any right to direct the manner, method, or 
means of performance of the work of oper- 
ating and driving of truck, owned by an- 
other, the driver of the truck was not the 
defendant's servant, but was the servant of 
the owner, an independent contractor, and 
the defendant was not liable for the negli- 
gence of the driver of the truck in its oper- 
ation along a public highway, resulting in 
injury to the plaintiff. Brown v. Georgia 
Kaolin Co., 60 Ga. App. 347, 4 S.E.2d 100 
(1939). 

Owner of automobile is not liable for act 
of servant who exceeds his authority by 



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IMPUTABLE NEGLIGENCE 



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permitting third person to ride with him. 
Greeson v. Bailey, 167 Ga. 638, 146 S.E. 490 

(1929). 

The driver of a motor vehicle, in the 
absence of express or implied authority from 
the owner to permit third persons to ride 
therein, is ordinarily held to be acting out- 
side the scope of his employment in permit- 
ting them to do so. Braselton v. Brazell, 49 
Ga. App. 269, 175 S.E. 254 (1934). 

Evidence that plaintiff's son was riding on 
the running board of the defendant's car, 
which was being driven at the time by one 
not an employee at the request of defen- 
dant's wife for a mission of her own, in 
violation of the positive order of the defen- 
dant never to permit anyone to ride on the 
running board, demanded a verdict in de- 
fendant's favor as the driver's act was beyond 
the scope of his authority and created no 
liability as between the rider on the running 
board and the defendant. Summers v. 
Barron, 59 Ga. App. 202, 200 S.E. 228 
(1938). 

Where agent, servant, or employee of 
defendant, while driving automobile in and 
about defendant's business and in perfor- 
mance of the services for which he was hired 
or which he contracted to perform for his 
principal or master, invites a third person to 
ride with him as a guest, and such third 
person is injured by reason of the negligence 
of the driver, no right of action arises in favor 
of such third person against the owner of the 
automobile for a tort committed by the 
driver as his agent, servant, or employee. 
Beard v. Oliver, 52 Ga. App. 229, 182 S.E. 921 
(1935). 

Although the driver was the agent, ser- 
vant, or employee of the defendant, and was 
driving the automobile in and about the 
defendant's business and in performance of 
the services for which he was hired, if while 
so engaged he invited a third person to ride 
with him as a guest, and thereupon such 
guest was killed by reason of the negligence 
of the driver, which negligence may have 
amounted to gross negligence, no right of 
action arose against the owner of the auto- 
mobile and in favor of such person who may 
be entitled to sue on account of the wrongful 
death, unless it should also appear that the 
guest was in the automobile with the author- 
ity, knowledge, or consent of the owner. 
Carpenter v. Lyons, 78 Ga. App. 214, 50 
S.E.2d 850 (1948). 



A driver employed by the owner of an 
automobile who invites another as his guest 
to ride in the automobile without the knowl- 
edge, authority, or consent of the owner is 
acting outside the scope of his employment, 
and the owner is not liable on account of the 
guest's death caused by negligence of the 
driver. Carpenter v. Lyons, 78 Ga. App. 214, 
50S.E.2d850 (1948). 

Owner not liable where loan of vehicle is 
mere bailment. — If the furnishing of an 
automobile is within what may be said to be 
a "business" of the owner, one to whom the 
car is entrusted for such purpose is not a 
bailee, as in a case of lending, but is a servant 
or agent; if on the other hand, the car is 
furnished by the owner merely as an accom- 
modation to the other, with no interest or 
concern in the purpose for which the other 
will use it, then its use, whether for recre- 
ation or otherwise, is not within the business 
of the owner, and the transaction is a mere 
bailment. Hubert v. Harpe, 181 Ga. 168, 182 
S.E. 167, answer conformed to, 52 Ga. App. 
262, 183 S.E. 98 (1935). 

Relationship between dealer in automo- 
biles and prospective purchaser was that of 
bailor and bailee, not principal and agent or 
master and servant, and dealer was not liable 
for injuries accruing to third person by 
reason of the negligent operation of the 
automobile by the prospective purchaser 
while trying it out. Harris v. Whitehall 
Chevrolet Co., 55 Ga. App. 130, 189 S.E. 392 
(1936). 

Servant a mere bailee where using vehicle 
for personal reasons with master's permis- 
sion. — Operation of the master's vehicle by 
a servant with the master's knowledge, con- 
sent and permission, but on a mission purely 
personal to the servant, places the servant in 
the same position as that of any borrower of 
a vehicle, and as to the use of the vehicle on 
the personal mission the relationship is that 
of bailor and bailee only. Harper v. Brown, 
122 Ga. App. 316, 176 S.E.2d 621 (1970). 

Business purpose need not be sole reason 
for servant's use of vehicle. — The sole 
purpose of the use of a vehicle by a servant 
does not have to be furtherance of the 
employer's business. As long as one of the 
purposes is such, it makes no difference that 
the vehicle is "also being used in part for the 
accommodation of the driver." Johnson v. 
Franklin, 312 F. Supp. 310 (S.D. Ga. 1970). 



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Torts of Servant — Specific 

Cases (Cont'd) 
1. Automobiles (Cont'd) 

Compensation to servant not required. — 

It is not essential that the relationship be- 
tween owner and driver such as to make the 
owner liable for the acts of the driver should 
be a business one or that the service be a 
remunerative service; an agency or servant 
relationship does not depend on an express 
appointment but may be implied from the 
circumstances of the case, and thus, one 
driving the owner's car at his request and for 
his purposes is the owner's servant or agent. 
Powell v. Kitchens, 84 Ga. App. 701, 67 
S.E.2d 203 (1951). 

Servant may resume duties after detour in 
which case master's liability reattaches. — 
Where a servant whose duty in the employ- 
ment of the master, is to drive a truck and to 
make delivery of an article of merchandise at 
a designated place, and then return with the 
truck to the garage where it is to be placed 
for the night, and where the servant, after 
having proceeded to the place for delivery of 
the merchandise, instead of proceeding to 
return the truck to the garage, makes a 
temporary departure from the service of the 
master on a devious course from that neces- 
sary to return it to the garage on a mission of 
his own, and where, after attending to this 
mission, he proceeds to return the truck to 
the garage as his duties to the master require 
him, the servant has then resumed his duties 
to the master, and in the operation of the 
truck for the purpose of returning it to the 
garage he is acting within the scope of his 
authority and is in the discharge of his duty 
to the master; where in returning the truck 
to the garage, the servant negligently runs it 
against and injures an automobile belonging 
to another person, the servant's negligence 
is the negligence of the master. Atlanta Furn. 
Co. v. Walker, 51 Ga. App. 781, 181 S.E. 498 
(1935). 

As general rule, servant in going to and 
from his work in automobile acts only for his 
own purposes and not for those of his 
employer, and consequently the employer is 
not to be held liable for an injury occasioned 
while the servant is en route to or from his 
work. McGuire v. Gem City Motors, Inc., 296 
F. Supp. 541 (N.D. Ga. 1969); Johnston v. 
United States, 310 F. Supp. 1 (N.D. Ga. 
1969). 



Vicarious liability of joint owners of vehi- 
cle. — Where two persons jointly own an 
automobile and employ a chauffeur and 
practically have an equal right to the use of 
the machine and the services of such chauf- 
feur, both of such joint owners are liable for 
the negligence of the chauffeur although at 
the time of the accident only one of the 
owners is enjoying the use of the machine, 
but if one of the owners singly employs a 
chauffeur and has the sole control of his 
conduct at the time of an accident, the 
co-owner is not charged with liability. Raley v. 
Hatcher, 61 Ga. App. 846, 7 S.E.2d 777 
(1940). 

Sufficiency of pleadings. — Petition alleg- 
ing that defendant's servant, engaged in 
hauling freight in interstate commerce, play- 
fully and negligently drove truck towards 
plaintiff, and misjudging his distance and 
speed, struck him, inflicting certain injuries, 
set out a cause of action against the defen- 
dant. Jump v. Anderson, 58 Ga. App. 126, 
197 S.E. 644 (1938). 

Where it was alleged that at the defen- 
dant's special request individual was using 
his vehicle for the purpose of looking after 
the needs of the defendant's aged parents 
and his sister, two of whom were ill, that he 
had been spending several nights at their 
home and carrying them groceries and med- 
icines, and that he was at the time proceed- 
ing toward their home to attend to their 
needs during the night, that all of these acts 
were at the defendant's request and for his 
benefit, and this was the purpose for which 
the car had been entrusted to him, which 
purpose he was actually attempting to effec- 
tuate at the time of collision, it could not be 
said as a matter of law that the petition failed 
on its face to show an agency relationship. 
Powell v. Kitchens, 84 Ga. App. 701, 67 
S.E.2d203 (1951). 

Two delivery truck drivers of defendant, 
who unlawfully and criminally forced their 
way into the plaintiff's home for the purpose 
of committing an unlawful act, were not 
acting in furtherance of their master's busi- 
ness, but were acting outside of the scope of 
their employment, and the petition brought 
against the employer did not set forth a 
cause of action under the doctrine of 
respondeat superior. Parry v. Davison-Paxon 
Co., 87 Ga. App. 51, 73 S.E.2d 59 (1952). 

Allegation that the defendant was at the 



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IMPUTABLE NEGLIGENCE 



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time of automobile accident an agent and 
employee of the owner of the vehicle acting 
within the course and scope of his employ- 
ment, with the express permission and con- 
sent and for the benefit of the latter is a 
sufficient allegation of agency to bind the 
owner for the tortious misconduct of the 
defendant. Belch v. Sprayberry, 97 Ga. App. 
47, 101 S.E.2d870 (1958). 

Prima facie case of master's liability. — 
Where, in a suit to recover damages against 
the master for injury because of the negli- 
gence of a servant in operating a motor 
vehicle which was negligently driven against 
the automobile of a third person causing 
injury, the evidence establishes (a) that the 
motor vehicle belonged to the master, (b) 
that the servant was an employee of such 
master, and (c) that at the time of the 
collision the servant was in control of and 
operating the motor vehicle of the master, a 
prima facie case is made for the plaintiff, 
and the burden of proof shifts to the master 
to prove, by testimony, if he can, that at the 
time of the collision the servant was not 
acting for the master and within the scope of 
the employment of the servant. Atlanta 
Laundries, Inc. v. Goldberg, 71 Ga. App. 130, 
30S.E.2d349 (1944). 

Where, the evidence for the plaintiff es- 
tablished (a) that the truck which was driven 
into the rear of his car belonged to the 
defendant corporation; (b) that the opera- 
tor of the truck was an employee of the 
defendant; and (c) that the employee was at 
the time of the collision in exclusive control 
of and negligently operating the truck, caus- 
ing damage, a presumption arose that the 
employee was at the time engaged in the 
master's business, within the scope of the 
employment and that defendant was liable 
for his negligent conduct; this presumption 
could be overcome by testimony, it generally 
being a jury question under all the facts and 
circumstances as developed by the whole 
evidence as to whether such presumption 
was rebutted by the evidence. Atlanta Laun- 
dries, Inc. v. Goldberg, 71 Ga. App. 130, 30 
S.E.2d349 (1944). 

Sufficiency of evidence. — Where there 
was nothing in the evidence declarations of 
alleged agent and alleged statements of the 
defendant over the telephone to support the 
contention of the plaintiff that the automo- 
bile belonged to defendant, or that at the 



time of the collision it was being used for 
her, and in and about her business, the 
evidence was not sufficient to support the 
verdict against defendant. Greble v. Morgan, 
69 Ga. App. 641, 26 S.E.2d 494 (1943). 

Although the evidence established the fact 
that employee temporarily (after making 
delivery of laundry) turned aside from the 
scope of his duty to engage in beer drinking, 
which was personal to himself, and of no 
concern to his master, and was outside the 
scope of his employment, under the facts the 
jury were authorized to find that at the time 
of the collision employee had finished the 
personal deviation and had returned to his 
duties within the scope of his employment, 
and had at the time resumed his master's 
business. Atlanta Laundries, Inc. v. 
Goldberg, 71 Ga. App. 130, 30 S.E.2d 349 
(1944). 

In an action to recover damages on ac- 
count of personal injuries sustained by being 
struck by an automobile truck of defendant 
corporation, where the evidence not only 
failed to show that the driver of the truck was 
employed by the defendant company at the 
time of the accident, but there is no evi- 
dence at all that driving a truck was within 
the scope of his employment or that he had 
ever been seen doing so, the evidence was 
such that a verdict for the plaintiff would 
have been unauthorized and contrary to law, 
and it was proper for the court to direct a 
verdict for the defendant. Johnson v. 
Webb-Crawford Co., 89 Ga. App. 524, 80 
S.E.2d63 (1954). 

2. Corporations 

Corporation is responsible for acts of its 
agents in the business of their employment, 
just as individual is liable. Personal Fin. Co. 
v. Whiting, 48 Ga. App. 154, 172 S.E. Ill 
(1933); Digsby v. Carroll Baking Co., 76 Ga. 
App. 656, 47 S.E.2d 203 (1948). 

A corporation is liable for the tort of its 
watchman who arrests a person under a 
mistaken idea that the latter is intoxicated. 
Exposition Cotton Mills v. Sanders, 143 Ga. 
593, 85 S.E. 747 (1915). 

Where a manufacturing company employs 
and pays a public officer to keep order on its 
premises, protect its property, and make 
arrests of persons violating the state laws, if 
such servant in the prosecution of his duties 
as such servant and within the scope of the 



203 



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TORTS 



51-2-2 



Torts of Servant — Specific 

Cases (Cont'd) 
2. Corporations (Cont'd) 

master's business commits a tortious act, the 
master is liable for the servant's tort. Massa- 
chusetts Cotton Mills v. Hawkins, 164 Ga. 
594, 139 S.E. 52 (1927). 

Where under the allegations of the peti- 
tion, the managing officer of the defendant 
corporation was the alter ego of the corpo- 
ration, his command, in directing the ser- 
vant of the corporation to use a truck of the 
corporation in transporting the plaintiff's 
son who was killed when the truck over- 
turned, was that of the corporation itself. 
Sumter Milling & Peanut Co. v. Singletary, 
79 Ga. App. Ill, 53 S.E.2d 181 (1949). 

Corporation not liable where servant acts 
from personal motivation or outside scope 
of business. — The mere averment in a 
petition that the slanderous utterance was 
made by the "manager" of the defendant's 
store, "in charge of the business of the 
defendant and so acting at the time com- 
plained of," was insufficient to authorize a 
recovery upon the theory of slander, since 
the utterance was not made by one who 
prima facie was the alter ego of the corpora- 
tion, and presumably was authorized to 
speak for the corporation, and, since there 
was no allegation of any express direction or 
authority from the corporation to speak the 
words in question. Sims v. Miller's Inc., 50 
Ga. App. 640, 179 S.E. 423 (1935). 

Petition failed to set out a cause of action 
against the beer distributing company for 
the wrongful death of plaintiff's son, an 
innocent bystander killed when company's 
sole stockholder and an accomplice were 
attempting to murder another in revenge 
for his alleged theft from the company. 
Heath v. Atlanta Beer Distrib. Co., 56 Ga. 
App. 494, 193 S.E. 73 (1937). 

Where a servant, at the time having no 
dealings with plaintiff with reference to the 
business of his employer, took offense at 
what he thought was an abusive and disre- 
spectful remark cast at him by plaintiff, and 
immediately assaulted him therefor, the mas- 
ter is not responsible for such servant's 
conduct, even though at the time of the 
assault the plaintiff was trespassing on the 
master's property, contrary to instructions 
theretofore given him by such servant, who 



had authority to evict trespassers from prop- 
erty of his master, and even though in mak- 
ing such assault the servant may have inci- 
dentally evicted the plaintiff from the 
premises, and by the assault rendered it less 
probable that the plaintiff would be guilty of 
any future trespass. Broome v. Primrose Tap- 
estry Mills, 59 Ga. App. 70, 200 S.E. 506 
(1938). 

Corporation not responsible if alleged 
tort-feasor not its servant. — A corporation 
is not liable for the acts of city police chief, 
while acting as such, in preventing the com- 
mission of a crime by the plaintiff and others 
about the property of the corporation, even 
though its agent may have commanded him 
to do the act which caused injury to the 
plaintiff. Kent v. Southern Ry., 52 Ga. App. 
731, 184 S.E. 638 (1936). 

Corporation is not chargeable with acts of 
agent done solely for his own benefit and 
from which no benefit accrues to the corpo- 
ration. Atlanta Hub Co. v. Bussey, 93 Ga. 
App. 171,91 S.E.2d66 (1956). 

Company is not chargeable with acts com- 
mitted by its president in his individual 
capacity and for his personal benefit only. 
Harper v. Brown, 122 Ga. App. 316, 176 
S.E.2d 621 (1970). 

When one who is agent of corporation 
commits tort at places other than place of 
agency, the company is not liable for the tort, 
unless it appears that it authorized the act or 
ratified it after its commission. Greenfield v. 
Colonial Stores, Inc., 110 Ga. App. 572, 139 
S.E.2d403 (1964). 

Mere fact that one who commits tort is 
director and officer of corporation does not, 
without more, render corporation liable. 
King v. Citizens Bank, 88 Ga. App. 40, 76 
S.E.2d86 (1953). 

Corporation is not liable for malicious 
acts of its agent or officer unless same are 
authorized, or were within scope of his du- 
ties, or were in themselves a violation of a 
duty owed by the corporation to the party 
injured, or such acts were ratified by the 
corporation. King v. Citizens Bank, 88 Ga. 
App. 40, 76S.E.2d86 (1953). 

A banking corporation is not liable for 
damages resulting from a false statement 
maliciously and willfully made by its execu- 
tive vice-president, thereby inducing another 
to institute without probable cause and ma- 
liciously a criminal prosecution against an- 



204 



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IMPUTABLE NEGLIGENCE 



51-2-2 



other, even where in making such false state- 
ment the officer of the corporation was 
acting in his capacity as such officer and for 
the corporation, and within the scope of his 
agency with the corporation, unless it affir- 
matively appears that such officer had au- 
thority from the corporation to make such 
false statement. King v. Citizens Bank, 88 Ga. 
App. 40, 76 S.E.2d 86 (1953). 

A bank is not liable for a malicious prose- 
cution in which its vice-president partici- 
pated, encouraged and aided, and pur- 
ported to act for the corporation, where it 
does not affirmatively appear that the bank 
authorized the vice-president to engage in 
such prosecution or aid and abet therein or 
that the bank assented thereto or ratified the 
same. King v. Citizens Bank, 88 Ga. App. 40, 
76S.E.2d86 (1953). 

In order for bank to be held liable for a 
malicious prosecution instigated by a false 
statement made by its agent or its executive 
vice-president, it must appear that the bank 
authorized such malicious prosecution, and 
that the same was done by the officer and 
agent, acting within the scope of his employ- 
ment or at the discretion or command of the 
bank. King v. Citizens Bank, 88 Ga. App. 40, 
76S.E.2d86 (1953). 

A corporation may, in proper case, be 
liable for malicious prosecution where the 
same is conducted by an agent or servant in 
furtherance of the business of the former, 
and within the scope of the latter 's authority. 
Adanta Hub Co. v. Bussey, 93 Ga. App. 171, 
91 S.E.2d66 (1956). 

A corporation may only be liable for slan- 
der expressly ordered or directed, and in 
slander situations only for those words spo- 
ken by the corporation's command. Church 
of God, Inc. v. Shaw, 194 Ga. App. 694, 391 
S.E.2d 666 (1990). 

Even though tort-feasor is owner and sole 
stockholder, corporation is not liable unless 
tort-feasor is acting within scope of his em- 
ployment or in the line of business of the 
corporation at the time. Harper v. Brown,. 
122 Ga. App. 316, 176 S.E.2d 621 (1970). 

5. Railroads 

Railroad liable for torts committed by 
servants in course of employment. — Even 
though the act of a trainman in beckoning 
and signaling to plaintiff to proceed was 
without the express or implied assent of the 



railroads, as they had limited his duties to 
attending the train, and at crossings, his duty 
did not extend beyond seeing that his train 
did not injure anyone at the crossing, the 
defendant railroads would be responsible 
for the wrongful act of the trainman, if 
committed in the prosecution of his business 
with the railroads, and if, as a result thereof, 
the plaintiff was injured. Louisville & N.R.R. 
v. Ellis, 54 Ga. App. 783, 189 S.E. 559 (1936). 

Where an employee, acting in the scope of 
his employment, with the use of a lantern or 
other instrumentality, knocks a fellow em- 
ployee from a railroad engine by the tracks, 
and to his death, the master is liable for his 
voluntary act. Frazier v. Southern Ry., 200 
Ga. 590, 37 S.E.2d 774 (1946). 

Railroad not liable where servant acts for 
personal reasons outside scope of employ- 
ment. — Where it appeared that the real 
purpose of the person assaulted in ap- 
proaching the agent of a railroad company 
at his place of business was solely to renew a 
mere personal quarrel between the plaintiff 
and the agent, the plaintiff being under 
notice that the agent was acting according to 
his instructions, the railroad company had 
no concern in what passed between them, 
and the trial judge did not err in granting a 
nonsuit. Dugger v. Central of Ga. Ry., 36 Ga. 
App. 782, 138 S.E. 266 (1927). 

Neither a carrier nor one who furnishes to 
a carrier terminal facilities for taking on 
passengers, owing a duty to one who is a 
passenger, violates that duty through any act 
of a servant towards passenger, where ser- 
vant committing the act has not been en- 
trusted with the performance of any duty 
owing by master to passenger, and where 
master is not negligent in failing to antici- 
pate, or to prevent, the performance of the 
act of servant. Massengale v. Adanta, B. & 
C.R.R., 46 Ga. App. 484, 168 S.E. Ill (1933). 

A railroad company is not liable in dam- 
ages for a homicide committed by a servant, 
where the homicide was not committed in 
the prosecution of the master's business and 
within the scope of the servant's employ- 
ment, but was his personal act in resenting a 
real or fancied insult. Frazier v. Southern 
Ry., 200 Ga. 590, 37 S.E.2d 774 (1946). 

Alleged tort-feasor not a servant. — 
Where employee of the Southern Railway 
solicited the aid of city police chief in remov- 
ing striking employees of a mill engaged in 



205 



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TORTS 



51-2-2 



Torts of Servant — Specific 

Cases (Cont'd) 
3. Railroads (Cont'd) 

criminal trespass of railroad tracks, and told 
said officer to fire upon the strikers after 
requests and threats had failed, and police- 
man did so fire, the policeman was acting in 
his official capacity and not as an agent of 
the railroad, and injured had no cause of 
action against the railroad. Kent v. Southern 
Ry., 52 Ga. App. 731, 184 S.E. 638 (1936). 

4. Retail Sales 

Retail sales employer liable for torts of 
servant committed within scope of employ- 
ment. — A customer lawfully on the pre- 
mises of a mercantile establishment for the 
purpose of transacting the business for 
which the establishment is operated is there 
by invitation of the proprietor of the estab- 
lishment, and if, while thus lawfully on the 
premises, he is unlawfully assaulted and 
beaten by an employee of the proprietor 
while acting within the scope of the employ- 
ment, the proprietor is liable therefor. J.M. 
High Co. v. Holler, 42 Ga. App. 657, 157 S.E. 
209 (1931). 

A master who puts a servant in a place of 
trust or responsibility, or commits to him the 
management of his business, or the care of 
his property, is jusdy held responsible when 
the servant, through lack of judgment or 
discretion, or from infirmity of temper, or 
under the influence of passion aroused by 
the circumstances and the occasion of pro- 
tecting the master's property, goes beyond 
the line of his strict duty or authority, and 
inflicts unjustifiable injury upon another. A 
company must take the risk of infirmity of 
temper, maliciousness, and misconduct 
(committed in the course of the servant's 
employment) of the employees whom the 
company has placed in charge of its busi- 
ness. Great Atl. 8c Pac. Tea Co. v. Dowling, 43 
Ga. App. 549, 159 S.E. 609 (1931). 

Where the defendant had not instructed 
or authorized its collector to pursue an 
improper course in the collection of bills 
due it, or to commit a tort, this did not 
necessarily prevent a recovery from the de- 
fendant. Atlanta Hub Co. v. Jones, 47 Ga. 
App. 778, 171 S.E. 470 (1933). 

A petition which alleged that the plaintiff, 
while present in the defendant's store as a 



customer, desiring to make a purchase from 
the defendant, was in a loud and angry tone, 
which could be heard by other customers 
present, falsely and unjustly accused by one 
of the defendant's clerks of having in a 
handbag a certain article belonging to the 
defendant, which charge humiliated and 
embarrassed the plaintiff, set out a cause of 
action for a willful and intentional tort, that 
is, the failure to protect the plaintiff as a 
customer, lawfully upon the defendant's pre- 
mises, from injury caused by the misconduct 
of the defendant's employees. Sims v. Mill- 
er's Inc., 50 Ga. App. 640, 179 S.E. 423 
(1935). 

If the conduct of employees outside of the 
scope of their employment, or of third per- 
sons or customers, is such as to cause any 
reasonable apprehension of danger to other 
customers or invitees because of such con- 
duct, it is the duty of the proprietor to 
interfere to prevent probable injury; and a 
failure so to interfere, and consequent dam- 
age, will subject such proprietor to an action 
for damages for such negligent failure to 
prevent the injury; but this duty of interfer- 
ence on the proprietor's part does not begin 
until the danger is apparent, or the circum- 
stances are such as would put an ordinarily 
prudent man on notice of the probability of 
danger. Great Ad. & Pac. Tea Co. v. Cox, 51 
Ga. App. 880, 181 S.E. 788 (1935). 

If there is any reasonable apprehension of 
danger to a customer from the unlawful 
conduct of other customers or third persons, 
or if a personal injury from the misconduct 
of other customers or third persons could 
have been prevented by the proprietor by 
the exercise of ordinary care and diligence, 
he may be guilty of negligence for his failure 
to use it, and consequendy responsible in 
damages. Great Ad. 8c Pac. Tea Co. v. Cox, 51 
Ga. App. 880, 181 S.E. 788 (1935). 

Where plaintiff was engaged in picketing 
grocery store, and store manager threw pep- 
per on the sidewalk and swept it into plain- 
tiff's face, and also poured ammonia on the 
sidewalk, in an effort to deter plaintiff from 
picketing the said store, petition was not 
subject to demurrer (now motion to dismiss) 
on grounds that manager was not acting 
within scope of his employment. Southern 
Grocery Stores, Inc. v. Herring, 63 Ga. App. 
267, 11 S.E.2d57 (1940). 

If a company by its agent gives instructions 



206 



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IMPUTABLE NEGLIGENCE 



51-2-2 



for the use of its explosive products, it is 
liable for its negligence in giving such in- 
structions, in connection with the sale of its 
products. Fleming v. E.I. Du Pont De 
Nemours 8c Co., 89 Ga. App. 837, 81 S.E.2d 
529 (1954). 

Where there was evidence that defen- 
dant's explosives sales agent, in advising and 
instructing a county engineer as to the 
method of detonation and the quantities of 
explosives necessary to blast rock from the 
county's quarry, was acting in the scope of 
his employment and in the prosecution of 
the defendant's business, and was not sub- 
ject to the county's control in the perfor- 
mance of his duties connected with the sales 
of explosives, and that, as a result of the 
negligence of the defendant's agent in in- 
structing the county engineer to use a large 
quantity of explosives, to be detonated in a 
short time, a blast was performed in the 
county's quarry according to the instruc- 
tions given, thereby causing the damage to 
the plaintiffs' house as alleged, the court 
erred in refusing to vacate judgment on 
nonsuit and reinstate plaintiffs' case. 
Fleming v. E.I. Du Pont De Nemours 8c Co., 
89 Ga. App. 837, 81 S.E.2d 529 (1954). 

In consideration of the problem of 
whether insults by employees are actionable 
against employers, both the public interest 
with which the defendant is invested and the 
willful character of the act committed 
against the plaintiff must be considered. 
Brown v. Colonial Stores, Inc., 110 Ga. App. 
154, 138S.E.2d62 (1964). 

An invitee on the premises of an invitor/ 
employer for the purpose of transacting 
business has a cause of action against the 
invitor where he is made the brunt of oppro- 
brious, insulting, and abusive words by a 
clerk employed to deal with the invitee and 
which tend to humiliate, mortify, and wound 
the feelings of the invitee. Greenfield v. 
Colonial Stores, Inc., 110 Ga. 572, 139 S.E.2d 
403 (1964). 

Where the plaintiff was struck by an uni- 
dentified individual running down the aisle 
of a grocery store owned by the defendant, 
the court erred in granting summary judg- 
ment to the defendant where it appeared 
from the attire of the unidentified individual 
that he was a store employee and there was 
evidence from which it could be inferred 
that he was either running to clock in or 



running to the back of the store to do some 
aspect of his job. Beverly v. J.H. Harvey Co., 
237 Ga. App. 21, 515 S.E.2d 404 (1999). 

It is duty of one who invites members of 
general public to come to his place of busi- 
ness to protect such customers or invitees 
from injury caused by misconduct of his own 
employees, in the conduct and scope of his 
business, and from the misconduct of other 
persons who come upon the premises. Great 
Atl. 8c Pac. Tea Co. v. Cox, 51 Ga. App. 880, 
181 S.E. 788 (1935). 

The owner of an establishment operated 
for the purpose of selling beer to the public 
owes a duty to a customer, who is lawfully in 
his place of business by his implied invitation 
for the purpose of purchasing beer, to pro- 
tect the customer against a willful and inten- 
tional tort committed by one employed by 
him to operate such establishment. Andrews 
v. Norvell, 65 Ga. App. 241, 15 S.E.2d 808 
(1941). 

The proprietor of a saloon is bound to 
exercise ordinary care and diligence to see 
that one who enters his saloon as a customer 
and patron is protected from willful miscon- 
duct and practical jokes which cause bodily 
harm to the patron and customer, perpe- 
trated by one employed by the proprietor to 
operate such saloon. Andrews v. Norvell, 65 
Ga. App. 241, 15 S.E.2d 808 (1941). 

In a customer's suit for assault, the true 
test is whether the assault is so related to, 
and so integrally a part of the transaction of 
a company's business as to logically and 
inescapably grow out of it. On the premises 
or off, a business establishment which invites 
customers to come in and trade owes to 
them the duty of not sending its employees 
out after them to commit unlawful assaults 
upon them while acting within the scope of 
employment. Colonial Stores, Inc. v. Sasser, 
79 Ga. App. 604, 54 S.E.2d 719 (1949). 

No liability where employee pursuing own 
interests. — Gasoline station operators were 
not liable under the doctrine of respondeat 
superior to a customer who was assaulted by 
a station employee, where the employee was 
pursuing his own, and not his master's, 
interest when he grabbed the customer and 
asked her to "party." Slaton v. B 8c B Gulf 
Serv. Center, 178 Ga. App. 701, 344 S.E.2d 
512 (1986). 

When salesman acts as independent con- 
tractor. — If the manner in which the details 



207 



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TORTS 



51-2-2 



Torts of Servant — Specific 

Cases (Cont'd) 
4. Retail Sales (Cont'd) 

of the work of selling defendant's automo- 
biles are to be done is left to the salesman, 
and the defendant company is interested 
only in the result of the salesman's work, the 
salesman is an independent contractor. 
Whitehall Chevrolet Co. v. Anderson, 53 Ga. 
App. 406, 186 S.E. 135 (1936). 

Employer not responsible for acts of sub- 
agent — A principal who has put goods for 
sale into the hands of an agent, the agent 
having no power to delegate his authority, 
and it being perhaps a wrongful act on the 
part of the agent to entrust them to any one 
else, and a wrongful act on the part of the 
latter to exercise any control over them, may 
be willing that his agent may employ a 
subagent so far that the entrusting of the 
goods by the agent to the subagent, or the 
exercise of control over them by the latter, or 
the latter's sale of them upon the terms 
prescribed to the agent, may all be acts done 
with the principal's consent, and yet not 
done by a person who stands in any contrac- 
tual relations to the principal, or who can 
look to the principal for compensation, or 
for whose promises or conduct the principal 
would be responsible to third persons. 
Sinclair Ref. Co. v. Veal, 51 Ga. App. 755, 181 
S.E. 705 (1935). 

Where an oil refining company made a 
written contract with another as its agent to 
sell its products within a certain territory, 
and provided that the agent should pay all 
necessary expenses in draying the compa- 
ny's products and equipment and in making 
sales, deliveries, and collections, and the 
company merely furnished the products to 
be sold, notwithstanding it may have had 
rules and regulations binding upon its agent 
as to the character of the subagent and as to 
the conduct of the business for the sale of its 
product, and where a truck driver was em- 
ployed by the agent to drive the truck fur- 
nished by the agent to transport, sell, and 
deliver the company's products to custom- 
ers, and was hired and paid by the agent out 
of the agent's own funds, and the agent had 
control and direction of the operation of the 
truck and gave orders and directions to the 
driver as to what to do, and had control of 
him and his activities, and control of the 



time, manner, means and methods of the 
driver in the execution of the work, the 
truck driver, in selling the products of the 
company by delivery from the truck while in 
the performance of the work for which he 
was employed, was the servant of the agent, 
and not the servant of the company; the 
company therefore was not liable for a mis- 
take of the driver in delivering gasoline 
instead of kerosene to a purchaser. Sinclair 
Ref. Co. v. Veal, 51 Ga. App. 755, 181 S.E. 705 
(1935). 

Jury to determine whether employee 
acted within scope of business. — Under the 
allegations of the petition the plain tiff, at the 
time of his injury, was an invitee of the 
defendant cotton mill, and it was a question 
for the jury whether or not the act of the 
defendant's store manager, in striking and 
injuring the plaintiff, was so closely con- 
nected with the employer's business as to 
render the defendant liable for the willful 
assault of its servant. Crawford v. Exposition 
Cotton Mills, 63 Ga. App. 458, 11 S.E.2d 234 
(1940). 

5. Miscellaneous 

Game warden. — Where petition alleged 
that a willful tort (the fatal shooting of 
plaintiff's husband) by a servant (game war- 
den on plantation) was committed in the 
prosecution and within the scope of his 
business and employment, and stated facts 
in support thereof, which, in connection 
with legitimate inferences, might establish 
the truth of the allegation, the question of 
the master's liability was one of fact. Estridge 
v. Hanna, 55 Ga. App. 159, 189 S.E. 364 
(1936). 

Grounds keeper. — Where the servant, 
while engaged in the duties of his employ- 
ment (to keep trespassers off defendant's 
land), shot the plaintiff, and where it did not 
appear from the allegations in the petition 
that the servant at the time when the plain- 
tiff was shot was engaged in keeping the 
plaintiff off the lands of the defendant, the 
petition did not show that servant was acting 
in the course of his employment and in the 
prosecution of his master's business, and 
thus did not set out a cause of action. Ford v. 
Mitchell, 50 Ga. App. 617, 179 S.E. 215 
(1935). 

Hospitals. — A hospital is liable for the 
negligence of its nurses in performing mere 



208 



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IMPUTABLE NEGLIGENCE 



51-2-2 



administrative or clerical acts, which acts, 
though constituting a part of a patient's 
prescribed medical treatment, do not re- 
quire the application of the specialized tech- 
nique or the understanding of a skilled 
physician or surgeon. Porter v. Patterson, 
107 Ga. App. 64, 129 S.E.2d 70 (1962). 

A hospital has a responsibility for the 
exercise of due care by a nurse (as well as by 
other hospital employees) while she is per- 
forming acts of a character which, though 
constituting a part of the patient's treatment 
as prescribed by the attending physician, do 
not require either the application or the 
understanding of the specialized technique 
possessed by a skilled physician or surgeon. 
Porter v. Patterson, 107 Ga. App. 64, 129 
S.E.2d70 (1962). 

Whether an act is merely administrative, 
so that negligence in its performance is 
imputed to the hospital, or nonadmini- 
strative depends on the nature or character 
of the act. Porter v. Patterson, 107 Ga. App. 
64, 129S.E.2d70 (1962). 

Hospital was not liable for nurse's conduct 
in injecting certain patients with lethal doses 
of potassium chloride in order to "put them 
out of their misery," where, although she 
may have been advancing the hospital's in- 
terests in giving authorized injections of 
potassium chloride, she clearly abandoned 
the hospital's interest and pursued only her 
own when she gave lethal, unauthorized 
injections. Lucas v. Hospital Auth., 193 Ga. 
App. 595, 388 S.E.2d 871 (1989). 

Hotels. — The proprietor of a hotel is 
liable under this section for an assault and 
battery committed by his manager on a 
guest. Hooks v. Sanford, 29 Ga. App. 640, 
116 S.E. 221 (1923). 

Like other masters, a hotel proprietor or 
innkeeper is liable for the torts of his servant 
committed in the performance of the duties 
the servant is employed to discharge and 
that could be reasonably expected of him in 
the prosecution of the proprietor's business. 
Newton v. Candace, 94 Ga. App. 385, 94 
S.E.2d 739 (1956). 

Where although there was a conflict in the 
evidence, there was some evidence support- 
ing the contention of the plaintiff patron, 
that, when he politely requested of the de- 
fendant hotel proprietor's clerk that he ar- 
range credit for his wife at another hotel, the 
clerk without provocation committed a vio- 



lent assault upon him, thereby personally 
injuring and humiliating him, it was error to 
grant a nonsuit on the assumption that the 
clerk when making the attack was not acting 
within the scope of his employment or in the 
prosecution of the hotel proprietor's busi- 
ness. Newton v. Candace, 94 Ga. App. 385, 94 
S.E.2d739 (1956). 

It is within the scope of a hotel clerk's 
employment, when representing the propri- 
etor of the establishment, to courteously 
reply to polite requests of the patron for 
accommodations of a lawful and moral na- 
ture irrespective of whether he or the hos- 
telry is under any duty or can reasonably be 
expected to grant such requests. Newton v. 
Candace, 94 Ga. App. 385, 94 S.E.2d 739 
(1956). 

Industrial manufacturer. — Where defen- 
dant loaned two of his employees to injured 
to help with his contract to repair blowpipes 
for defendant, and it became necessary for 
employees to help injured prepare a piece of 
railroad iron to use in repairing the 
blowpipes, and employees' negligence 
caused the iron to slip and crush injured's 
hand, injured could recover from defendant 
because injured had the right to put special 
servants at any task properly converted into 
the job. Bibb Mfg. Co. v. Souther, 52 Ga. 
App. 722, 184 S.E. 421 (1936). 

Insurance companies. — Where the desig- 
nated examiner of the defendant insurance 
company directed defendant A to employ 
defendant B, a doctor, to remove the heart 
of the deceased husband of the plaintiff and 
deliver it to another doctor for the purpose 
of dissection, without the knowledge or con- 
sent of the plaintiff, and that the second 
doctor did dissect the said heart, and that 
the insurance company ratified the acts of A 
and B by paying the two doctors for their 
services, but the insurance company did not 
have any knowledge of the act of A or B, or 
received or retained any benefit therefrom, 
and where defendant A is joined with defen- 
dant B and the insurance company as joint 
tort-feasors in an action for damages on 
account of the alleged unauthorized re- 
moval and mutilation of the said heart, a 
cause of action as to the acts of A and B, 
against the defendant insurance company 
under any theory of agency or of ratification 
of an unauthorized act did not exist. Liberty 
Mut. Ins. Co. v. Lipscomb, 56 Ga. App. 15, 
192 S.E. 56 (1937). 



209 



51-2-2 



TORTS 



51-2-2 



Torts of Servant — Specific 

Cases (Cont'd) 
5. Miscellaneous (Cont'd) 

The function of a designated examiner for 
an insurance company is to examine living 
persons, and such examiner has no author- 
ity, merely by virtue of such agency, to dissect 
or cause to be dissected a dead body; and its 
act is directing another to employ a doctor 
for that purpose, without specific instruc- 
tions from the principal, will not be binding 
on the principal. Liberty Mut. Ins. Co. v. 
Lipscomb, 56 Ga. App. 15, 192 S.E. 56 
(1937). 

Land clearing business. — Where the 
record shows without substantial dispute 
that the defendant was not in the land 
clearing business but was having his own 
land cleared; that he was to pay a lump sum 
calculated at the rate of $125 per acre for 
each acre cleared; that the profits or losses 
belonged solely to the third party and that 
he furnished his own equipment and tools; 
that defendant did not share in any of the 
expenses for supplies or repairs; nor did he 
pay any employees, the third party was an 
independent contractor and not a servant of 
the defendant. Pippin v. Bryan, 149 Ga. App. 
193, 253 S.E.2d 855 (1979). 

Lifeguard. — A jury could have found that 
the efforts, allegedly negligent, of the life- 
guard to revive the injured person were 
within the general scope of his employment, 
and thus would bind the employer under the 
principles embodied in this section. Knowles 
v. La Rue, 102 Ga. App. 350, 116 S.E.2d 248 
(1960). 

Newspaper carrier. — The evidence de- 
manded the finding that the newscarrier 
whose act was alleged to have been the cause 
of the plaintiff's injuries was an independent 
contractor, and the trial court did not err in 
directing verdict for defendant company. 
Morris v. Constitution Publishing Co., 84 Ga. 
App. 816, 67 S.E.2d 407 (1951). 

Parking attendant. — The parking atten- 
dant's altercation with plaintiff and her boy- 
friend appeared to have been purely per- 
sonal and not for any purpose beneficial to 
attendant's employer. Worstell Parking, Inc. 
v. Aisida, 212 Ga. App. 605, 442 S.E.2d 469 
(1994). 

Property management. — Petition alleg- 
ing that plaintiff was maliciously shot and 



injured by the janitor of an apartment house 
while the plaintiff was present in the house 
as a guest of a tenant, the janitor, within the 
knowledge of the defendants, (security deed 
holder arid managing agents) being a man 
of vicious and dangerous character, having a 
propensity to assault and injure others with- 
out cause, and that the defendants were 
negligent in retaining him as such employee 
after knowledge of this trait, is sufficient to 
state a cause of action against the defen- 
dants. Henderson v. Nolting First Mtg. 
Corp., 184 Ga. 724, 193 S.E. 347 (1937). 

Telegraph company. — Where an agent of 
a telegraph company is a party to a fraudu- 
lent scheme, by sending over the wires of the 
company false, fraudulent, and fictitious 
messages, which are intended to and do 
deceive the addressee, to his damage, the 
telegraph company is liable therefor. Jenkins 
v. Cobb, 47 Ga. App. 456, 170 S.E. 698 
(1933). 

Where, to facilitate discharge of duties of 
servant employed by telegraph company to 
collect telegraphic messages and bring them 
to the company, it is essential that the ser- 
vant ride a bicycle, and where the servant, in 
order to have the bicycle repaired, is autho- 
rized by the employer to go to a repair shop 
for that purpose, injury to a pedestrian 
occasioned on the return trip, when the 
servant negligently runs into a pedestrian on 
the street is proximately caused by the neg- 
ligence of the telegraph company through 
its servant and agent. Marsh v. Postal 
Telegraph-Cable Co., 55 Ga. App. 57, 189 
S.E. 550 (1936). 

Telephone company. — Where employee 
raped victim while reestablishing her tele- 
phone service the alleged rape was not re- 
lated to defendant's employment and did 
not further employer's business. It was a 
purely personal act for which employer can- 
not be deemed vicariously liable. Mountain 
v. Southern Bell Tel. 8c Tel. Co., 205 Ga. App. 
119,421 S.E.2d284 (1992). 

Theaters. — Petition alleging that the 
manager of the theater was guilty of willful 
and malicious conduct (commission of acts 
of sodomy) resulting in injury to the minor 
plaintiff, failed to state a cause of action 
against the defendant theater company be- 
cause it appeared from the allegations 
thereof that the manager's acts were perpe- 
trated solely for his personal gratification, 



210 



51-2-2 



IMPUTABLE NEGLIGENCE 



51-2-2 



and no facts were alleged such as would 
constitute actual notice to the master suffi- 
cient to raise a duty as to it to protect its 
invitees from such acts, to put it on notice or 
inquiry as to the criminal propensities of its 



employee, or to put the employer on notice 
so that its retention of the employee in its 
service would constitute negligence. Com- 
munity Theatres Co. v. Bentley, 88 Ga. App. 
303, 76S.E.2d632 (1953). 



OPINIONS OF THE ATTORNEY GENERAL 



"Servant" means employee as well as do- 
mestic servant. 1958-59 Op. Att'y Gen. p. 
390. 

Master not liable when servant steps aside 
from master's business. — If a servant steps 
aside from his master's business, for however 
short a time, to do an act entirely discon- 
nected from it, and injury results to another 
from such independent voluntary act, the 
servant may be liable, but the master is not 
liable; the test is not that the act of the 
servant was done during the existence of the 
employment, that is to say, during the time 
covered by the employment, but whether it 
was done in the prosecution of the master's 
business. 1958-59 Op. Att'y Gen. p. 390. 



Distinguishing independent contractor 
from servant. — The true test whether a 
person employed is a servant or an indepen- 
dent contractor is whether the employer, 
under the contract, whether oral or written, 
has the right to direct the time, the manner, 
the methods, and the means of the execu- 
tion of the work, as contradistinguished 
from the right to insist upon the contractor 
producing results according to the contract, 
or whether the contractor in the perfor- 
mance of the work contracted for is free 
from any control by the employer of the 
time, manner and method in the perfor- 
mance of the work. 1958-59 Op. Att'y Gen. p. 
390. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 41 Am. Jur. 2d, Husband 
and Wife, § 240 et seq. 59 Am. Jur. 2d, 
Parent and Child, § 116 et seq. 74 Am. Jur. 
2d, Torts, § 54. 

C.J.S. — 67A C.J.S., Parent and Child, 
§ 123 et seq. 

ALR. — Automobiles: liability of parent 
for injury to child's guest by negligent oper- 
ation of car, 2 ALR 900; 88 ALR 590. 

Liability of employer for acts of janitor, 8 
ALR 1458. 

Liability of parent for injury inflicted by 
minor child with dangerous instrumentality 
left accessible to him, 12 ALR 812. 

Liability of wife for husband's torts, 12 
ALR 1459. 

Liability of master for damage to person 
or property due to servant's smoking, 13 
ALR 997; 31 ALR 294. 

Liability of master for injury to one whom 
servant, in violation of instructions, permits 
to ride on vehicle, 14 ALR 145; 62 ALR 1167; 
74 ALR 163. 

Statutory liability of stockholder for tort of 
corporation, 14 ALR 267. 

Liability of employer for injuries inflicted 
by automobile while being driven by or for 



salesman or collector, 17 ALR 621; 29 ALR 
470; 54 ALR 627; 107 ALR 419. 

Personal liability of servant or agent to 
third person for injuries caused by the per- 
formance or nonperformance of his duties 
to his employer, 20 ALR 97; 99 ALR 408; 96 
ALR2d 208. 

Liability of husband for independent tort 
of wife, 20 ALR 528; 27 ALR 1218; 59 ALR 
1468. 

Judgment for or against master in action 
for servant's tort as bar to action against 
servant, 31 ALR 194. 

Liability of master for damages to third 
person from wanton or willful act of servant 
directed against master, 40 ALR 207. 

Liability of contractee and contractor in- 
ter se with respect to injuries sustained while 
the stipulated work is in course of perfor- 
mance, 44 ALR 891. 

Liability of owner for negligence of one 
permitted by the former's servant, or mem- 
ber of his family, to drive automobile, 44 
ALR 1382; 54 ALR 851; 98 ALR 1043; 134 
ALR 974. 

Owner's liability for injury by automobile 
while being used by a servant for his own 
pleasure or business, 45 ALR 477. 



211 



51-2-2 



TORTS 



51-2-2 



Liability for injury to or by one operating 
motor vehicle while under the age pre- 
scribed by law, 46 ALR 1067. 

Liability of principal for amount of fraud- 
ulent excess collection by agent, 46 ALR 
1212. 

Liability of bank in respect to funds of 
third persons misappropriated by bank of- 
ficer or employee and used to cover his own 
overdraft or defalcation, 48 ALR 464. 

Responsibility of mail contractor to third 
person for negligence or other misconduct 
of an employee, 51 ALR 198. 

Liability of private employer of police 
officer for latter's negligence or other mis- 
conduct, 55 ALR 1197. 

Liability for negligence of intoxicated 
partner or servant, 55 ALR 1225. 

Negligence of one spouse as imputable to 
other because of the marital relationship 
itself, 59 ALR 153; 110 ALR 1099. 

Liability for injury caused by window 
washer, 61 ALR 356. 

Liability of one who leaves building mate- 
rials accessible to children for injury to third 
person by child's act, 62 ALR 833. 

Liability of bank to holder of certificate of 
deposit fraudulently issued by a bank officer 
or employee in its name, 63 ALR 991. 

Liability of owner under "family-purpose" 
doctrine, for injuries by automobile while 
being used by member of his family, 64 ALR 
844; 88 ALR 601; 100 ALR 1021; 132 ALR 
981. 

Liability of infant in tort for inducing 
contract by misrepresenting his age, 67 ALR 
1264. 

Ownership of automobile as prima facie 
evidence of responsibility for negligence of 
person operating it, 74 ALR 951; 96 ALR 
634. 

Liability of master for injury inflicted by 
servant with firearms, 75 ALR 1176. 

Necessity of verdict against servant or 
agent as condition of verdict against master 
or principal for tort of servant or agent, 78 
ALR 365. 

Family purpose doctrine as applicable to 
instrumentality other than automobile, 79 
ALR 1161. 

What amounts to gross negligence, reck- 
lessness, or the like, within statute limiting 
liability of owner or operator of automobile 
for injury to guest, 86 ALR 1145. 

Liability of telegraph company for puni- 



tive damages for wrongful or negligent acts 
of employees as regards messages, 89 ALR 
356. 

Necessity of pleading family purpose doc- 
trine and sufficiency and effect of pleading 
in that regard, 93 ALR 991. 

Right to join master and servant as defen- 
dants in action based on wrongful or negli- 
gent act of servant, where master's liability 
rests on doctrine of respondeat superior, 98 
ALR 1057; 59 ALR2d 1066. 

Liability of owner for negligence of one to 
whom car is loaned or hired, 100 ALR 920; 
168 ALR 1364. 

One in general employment of carrier as 
servant temporarily of shipper or consignee 
while aiding in loading or unloading or 
moving cars, as regards responsibility for his 
negligence, and vice versa, 102 ALR 514. 

Liability of infant for torts of his employee 
or agent, 103 ALR 487. 

Liability of bank for losses incurred on 
loans or investments made on recommenda- 
tion of its officers or employees, 113 ALR 
246. 

Status of gasoline and oil distributor or 
dealer as agent, employee, independent con- 
tractor, or independent dealer as regards 
responsibility for injury to person or damage 
to property, 116 ALR 457; 83 ALR2d 1282. 

Prima facie case or presumption from 
registration of automobile in name of, or 
from proof of ownership by, defendant, as 
applicable to questions other than the 
master-servant relationship at time of acci- 
dent, 122 ALR 228. 

Right to bring separate actions against 
master and servant, or principal and agent, 
to recover for negligence of servant or 
agent, where master's or principal's only 
responsibility is derivative, 135 ALR 271. 

Identity of master, as regards rule of 
respondeat superior, of one loaned or hired 
out by general employer in connection with 
WPA or other similar governmental project, 
136 ALR 525. 

Criminal responsibility of one authorized 
generally to sell intoxicating liquors for par- 
ticular illegal sale thereof by employee or 
agent, 139 ALR 306. 

What amounts to ratification by principal 
or master of libel or slander by agent or 
servant, 139 ALR 1066. 

Variance between allegation and proof as 
regards identity of servant or agent for 



212 



51-2-2 



IMPUTABLE NEGLIGENCE 



51-2-2 



whose acts defendant is sought to be held 
responsible, 139 ALR 1152. 

Rule respondeat superior as applicable to 
negligent act of employee done within scope 
of the employment, where injury was the 
result of a personal collision or accident of a 
similar nature, 141 ALR 683. 

Amount of recovery in tort action against 
servant or other person who was the active 
tort-feasor as limit of amount recoverable 
against one responsible only derivatively, 141 
ALR 1168. 

Homework by employee as affecting em- 
ployer's responsibility for injury to third 
person due to employee's negligence while 
on way to or from home, 146 ALR 1193. 

Scope and application of exceptions as 
regards carrying passengers in policies of 
automobile insurance, 147 ALR 632. 

Owner's statutory liability for negligent 
operation of automobile where he has con- 
sented to use by another and car is being 
driven by a third person, 147 ALR 875. 

Owner's presence in automobile operated 
by another as affecting former's right or 
liability, 147 ALR 960. 

Liability for injury or damages resulting 
from traffic accident on highway involving 
vehicle in military service, 147 ALR 1431. 

Liability of master or principal for ser- 
vant's or agent's libel or slander of one other 
than servant or agent or former servant or 
agent, 150 ALR 1338. 

Liability of owner of automobile for neg- 
ligence while it is being operated by another 
with his consent as affected by immunity of 
the operator (or his employer) from liability 
or action, 152 ALR 1058. 

Liability for injury to person or damage to 
property as result of "blackout," 155 ALR 
1458; 158 ALR 1463. 

Master's liability for injury of one servant 
by another in enforcing discipline, 156 ALR 
640. 

Automobile owner's common-law liability 
for negligence in entrusting car to known 
incompetent, reckless, or inexperienced per- 
son as affected by statute limiting owner's 
liability to use within terms of consent, 163 
ALR 1418. 

Master's liability for injuries to 
nonemployee caused by servant's negligence 
in use of instrumentality different from that 
authorized, 166 ALR 877. 

Liability of one spouse for tort of other in 
maintenance of household, 168 ALR 937. 



Employer's liability for assault by truck 
driver or chauffeur, 172 ALR 532. 

Liability of infant for injuries inflicted at 
play, 173 ALR 890. 

Necessity of pleading that tort was com- 
mitted by servant, in action against master, 4 
ALR2d 292. 

Overcoming inference or presumption of 
driver's agency for owner, or latter's consent 
to operation, of automobile, 5 ALR2d 196. 

Defenses of fellow servant and assumption 
of risk in actions involving injury or death of 
member of airplane crew, ground crew, or 
mechanic, 13 ALR2d 1137. 

Tort liability of master for theft by servant, 
15 ALR2d 829; 39 ALR4th 543. 

Liability under respondeat superior doc- 
trine for acts of operator furnished with 
leased machine or motor vehicle, 17 ALR2d 
1388. 

Acts of employee, in procuring warrant or 
aiding prosecution, as within scope of em- 
ployment so as to render employer liable for 
malicious prosecution, 18 ALR2d 402. 

Liability of employer for injury resulting 
from games or other recreational or social 
activities, 18 ALR2d 1372. 

Liability for assault by employee in collect- 
ing debt, 22 ALR2d 1227. 

Employer's liability for negligence of an 
assistant procured or permitted by his em- 
ployee without authority, 25 ALR2d 984. 

Construction and effect of statutes which 
make parent, custodian, or other person 
signing minor's application for vehicle oper- 
ator's license liable for licensee's negligence 
or willful misconduct, 26 ALR2d 1320. 

Liability of employer, other than carrier, 
for a personal assault upon customer, pa- 
tron, or other invitee, 34 ALR2d 372. 

Liability for injury to hand in vehicle door, 
34ALR2d 1172. 

Liability of insurance company for negli- 
gent operation of automobile by insurance 
agent or broker, 36 ALR2d 261. 

Employer's liability for negligence of em- 
ployee in piloting his own airplane in em- 
ployer's business, 46 ALR2d 1050. 

Liability for injury or damage resulting 
from fire started by use of blowtorch, 49 
ALR2d 368. 

Owner's presence in motor vehicle oper- 
ated by another as affecting owner's rights or 
liability, 50 ALR2d 1281. 

Employer's liability for employee's negli- 



213 



51-2-2 



TORTS 



51-2-2 



gence in operating employer's car in going 
to or from work or meals, 52 ALR2d 350. 

Route driver or salesman as independent 
contractor or employee of merchandise pro- 
ducer or processor, for purposes of 
respondeat superior doctrine, 53 ALR2d 
183. 

Liability of employer for negligent opera- 
tion of motor vehicle by automobile sales- 
man, 53ALR2d631. 

Employer's liability for assault by taxicab 
or motorbus driver, 53 ALR2d 720. 

Liability of insurance company for libel or 
slander by its agents or employees, 55 ALR2d 
828. 

Right to join master and servant as defen- 
dants in tort action based on respondeat 
superior, 59 ALR2d 1066. 

Sleeping-car company's liability for em- 
ployee's assault upon passenger, 60 ALR2d 
1115. 

Liability of proprietor of store, office, or 
similar business premises for injury from fall 
due to presence of obstacle placed or 
dropped on floor, 61 ALR2d 110. 

Liability of proprietor of store, office, or 
similar business premises for injury from fall 
due to presence of litter or debris on stair- 
way, 61 ALR2d 174. 

Liability of proprietor of store, office, or 
similar business premises for injury from fall 
due to presence of obstacle placed or 
dropped on steps, 61 ALR2d 205. 

Liability of municipality for torts in con- 
nection with airport, 66 ALR2d 634. 

Liability of person permitting child to 
have gun, or leaving gun accessible to child, 
for injury inflicted by the latter, 68 ALR2d 
782. 

Liability of hospital or sanitarium for neg- 
ligence of physician or surgeon, 69 ALR2d 
305. 

Hospital's liability as to diagnosis and care 
of patients brought to emergency ward, 72 
ALR2d 396. 

Personal liability of auctioneer to owner 
or mortgagee for conversion, 96 ALR2d 208. 

House-to-house salesman or canvasser as 
independent contractor or employee, for 
purposes of respondeat superior, 98 ALR2d 
335. 

Liability of employer for injury to wife or 
child of employee through latter's negli- 
gence, 1 ALR3d 677. 

Right of employer sued for tort of em- 
ployee to implead the latter, 5 ALR3d 871. 



Validity and construction of statutes mak- 
ing parents liable for torts committed by 
their minor children, 8 ALR3d 612. 

Owning, leasing, or otherwise engaging in 
business of furnishing services for taxicabs as 
basis of tort liability for acts of taxi driver 
under respondeat superior doctrine, 8 
ALR3d 818. 

Modern status of family purpose doctrine 
with respect to motor vehicles, 8 ALR3d 
1191. 

Liability of operating surgeon for negli- 
gence of nurse, assisting him, 12 ALR3d 
1017. 

Employer's liability to employee for mal- 
practice of physician supplied by employer, 
16 ALR3d 564. 

Master's liability for injury to or death of 
person, or damage to property, resulting 
from fire allegedly caused by servant's smok- 
ing, 20 ALR3d 893. 

Liability of owner or operator of power 
lawnmower for injuries resulting to third 
person from its operation, 25 ALR3d 1314. 

Admissibility and probative value of admis- 
sions of fault by agent on issue of principal's 
secondary liability, where both are sued, 27 
ALR3d 966. 

Liability of hospital for negligence of 
nurse assisting operating surgeon, 29 ALR3d 
1065. 

Intoxicating liquors: right of one liable 
under civil damage act to contribution or 
indemnity from intoxicated person, or vice 
versa, 31 ALR3d 438. 

Liability of labor union or its membership 
for torts committed by officers, members, 
pickets, or others, in connection with lawful 
primary labor activities, 36 ALR3d 405. 

Liability of one contracting for private 
police security service for acts of personnel 
supplied, 38 ALR3d 1332. 

Insurer's tort liability for acts of adjuster 
seeking to obtain setdement or release, 39 
ALR3d 739. 

Liability for negligence of doorman or 
similar attendant in parking patron's auto- 
mobile, 41 ALR3d 1055. 

Subrogation of employer's liability insurer 
to employer's right of indemnity against 
negligent employee, 53 ALR3d 631. 

Liability for injury to or death of passen- 
ger from accident due to physical condition 
of carrier's employee, 53 ALR3d 669. 

Employer's liability for action of trustees 



214 



51-2-3 



IMPUTABLE NEGLIGENCE 



51-2-3 



or similar body administering employer's 
pension plan, 54 ALR3d 189. 

Parents' liability for injury or damage in- 
tentionally inflicted by minor child, 54 
ALR3d 974. 

Newspaper boy or other news carrier as 
independent contractor or employee for 
purposes of respondeat superior, 55 ALR3d 
1216. 

Liability of hospital, other than mental 
institution, for suicide of patient, 60 ALR3d 
880. 

Liability of parent for injury caused by 
child riding a bicycle, 70 ALR3d 611. 

Liability of one hiring private investigator 
or detective for tortious acts committed in 
course of investigation, 73 ALR3d 1175. 

When is employer chargeable with negli- 
gence in hiring careless, reckless, or incom- 
petent independent contractor, 78 ALR3d 
910. 

Vicarious liability of private franchisor, 81 
ALR3d 764. 

Student-driver's negligence as imputable 
to teacher-passenger, 90 ALR3d 1329. 

Principal's liability for punitive damages 
because of false arrest or imprisonment, or 
malicious prosecution, by agent or em- 
ployee, 93 ALR3d 826. 

Liability of one who sells gun to child for 
injury to third party, 4 ALR4th 331. 

Liability of governmental unit or its offic- 
ers for injury to innocent occupant of mov- 
ing vehicle, or for damage to such vehicle, as 
result of police chase, 4 ALR4th 865. 

Criminal responsibility of parent for act of 
child, 12 ALR4th 673. 

Fact that passenger in vehicle is owner as 
affecting right to recover from driver for 
injuries to, or death of, passenger incurred 
in consequence of driver's negligence, 21 
ALR4th 459. 

Liability of donor of motor vehicle for 
injuries resulting from owner's operation, 22 
ALR4th 738. 



Release of, or covenant not to sue, one 
primarily liable for tort, but expressly reserv- 
ing rights against one secondarily liable, as 
bar to recovery against latter, 24 ALR4th 547. 

Modern trends as to tort liability of child 
of tender years, 27 ALR4th 15. 

Fact that passenger in negligendy oper- 
ated motor vehicle is owner as affecting 
passenger's liability to or rights against third 
person-modern cases, 37 ALR4th 565. 

Insurer's tort liability for wrongful or neg- 
ligent issuance of life policy, 37 ALR4th 972. 

Liability of bank or safe-deposit company 
for its employee's theft or misappropriation 
of contents of safe-deposit box, 39 ALR4th 
543. 

Construction and effect of statutes which 
make parent, custodian, or other person 
signing minor's application for vehicle oper- 
ator's license liable for licensee's negligence 
or willful misconduct, 45 ALR4th 87. 

Liability of hospital or sanitarium for neg- 
ligence of physician or surgeon, 51 ALR4th 
235. 

Liability, under statute, of labor union or 
its membership for torts committed in con- 
nection with primary labor activi ties-state 
cases, 85 ALR4th 979. 

Liability of church or religious society for 
sexual misconduct of clergy, 5 ALR5th 530. 

Employer's liability for assault, theft, or 
similar intentional wrong committed by em- 
ployee at home or business of customer, 13 
ALR5th 217. 

Liability of municipal corporation for neg- 
ligent performance of building inspector's 
duties, 24 ALR5th 200. 

Employer's liability for negligence of em- 
ployee in driving his or her own automobile, 
27ALR5th 174. 

Recovery for emotional distress based on 
fear of contracting HIV or AIDS, 59 ALR5th 
535. 



51-2-3. Liability for malicious acts of minor child. 

(a) Every parent or guardian having the custody and control over a 
minor child or children under the age of 18 shall be liable in an amount not 
to exceed $10,000.00 plus court costs for the willful or malicious acts of the 
minor child or children resulting in reasonable medical expenses to 
another, damage to the property of another, or both reasonable medical 
expenses and damage to property. 



215 



51-2-3 



TORTS 



51-2-3 



(b) This Code section shall be cumulative and shall not be restrictive of 
any remedies now available to any person, firm, or corporation for injuries 
or damages arising out of the acts, torts, or negligence of a minor child 
under the ''family-purpose car doctrine," any statute, or common law in 
force and effect in this state. 

(c) The intent of the General Assembly in passing this Code section is to 
provide for the public welfare and aid in the control of juvenile delin- 
quency, not to provide restorative compensation to victims of injurious or 
tortious conduct by children. (Ga. L. 1956, p. 699, § 1; Ga. L. 1966, p. 424, 
§ 1; Ga. L. 1976, p. 511, § 2; Ga. L. 1982, p. 849, §§ 1, 2; Ga. L. 1987, p. 3, 
§ 51; Ga. L. 1997, p. 532, § 1.) 



History of section. — Georgia Laws 1976, 
p. 511, § 2 entirely superseded the former 
section which was held unconstitutional in 
Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 
766 (1971), insofar as it made parents liable 
without limits for willful torts of their chil- 
dren which resulted in personal injury. 

Cross references. — Juvenile proceedings, 
parental rights, mental incompetency and 
dependency for juveniles, Ch. 11, T. 15. 
Interstate compact on juveniles, Ch. 3, T. 39. 

Editor's notes. — Ga. L. 1997, p. 532, § 2, 
not codified by the General Assembly, pro- 
vides that the 1997 amendment to this Code 
section shall be applicable to willful and 
malicious acts occurring on or after July 1 , 
1997. 

Law reviews. — For article recommending 
more consistency in age requirements of 
laws pertaining to the welfare of minors, see 
6 Ga. St. B.J. 189 (1969). For article survey- 
ing constitutional law, see 34 Mercer L. Rev. 
53 (1982). For article surveying recent de- 



velopments in Georgia juvenile law, see 34 
Mercer L. Rev. 395 (1982). 

For note discussing the family purpose car 
doctrine as an extension of the principle of 
respondeat superior, see 3 Ga. St B.J. 112 
(1966). For note, "Tort Liability in Georgia 
for the Criminal Acts of Another," see 18 Ga. 
L. Rev. 361 (1984). 

For comment on Landers v. Medford, 108 
Ga. App. 525, 133 S.E.2d 403 (1963), see 1 
Ga. St. B.J. 229 (1964). For comment criti- 
cizing Corley v. Lewless, 227 Ga. 745, 182 
S.E.2d 776 (1971), as to constitutionality of 
this section prior to 1976 amendment, see 23 
Mercer L. Rev. 681 (1972). For comment on 
Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 
766 (1971), holding parental liability statute 
which formerly provided for unlimited liabil- 
ity of parents for willful torts of minor chil- 
dren on the basis of parent-child relation- 
ship violative of due process, see 9 Ga. St. B.J. 
129 (1972). 



JUDICIAL DECISIONS 



Analysis 

General Consideration 
Decisions Under Prior Law 



General Consideration 

Section not unreasonable. — This section, 
intended to aid in reducing juvenile delin- 
quency by imposing liability upon parents 
who control minors, is neither unreason- 
able, arbitrary, nor capricious. Hayward v. 
Ramick, 248 Ga. 841, 285 S.E.2d 697 (1982). 

State has legitimate interest in subject of 
this section (controlling juvenile delinquen- 
cy) , and that there is a rational relationship 



between the means used (imposing of liabil- 
ity upon parents of children who willfully or 
maliciously damage property) and this ob- 
ject. Hayward v. Ramick, 248 Ga. 841, 285 
S.E.2d697 (1982). 

No liability where child's acts were not 
reckless. — Mother, whose son stole her car 
keys and was driving her car when it collided 
with a bicyclist, was not liable for damages, 
although she was aware that her son was not 



216 



51-2-3 



IMPUTABLE NEGLIGENCE 



51-2-3 



a licensed driver and that he had a juvenile 
record, where there was no evidence that she 
knew of any proclivity or propensity on the 
part of her son for the specific dangerous 
activity alleged, and there was no evidence 
that her son's acts were reckless. Jackson v. 
Moore, 190 Ga. App. 329, 378 S.E.2d 726 
(1989). 

The owner of an automobile whose son let 
an unlicensed 16-year-old drive has an action 
against the 16-year-old and his parents for 
willful or malicious acts and the 16-year-old 
is not protected by the principles of the 
family car doctrine. Cabral v. White, 181 Ga. 
App. 816, 354 S.E.2d 162 (1987). 

Cited in Her r in v. Lamar, 106 Ga. App. 91, 
126 S.E.2d 454 (1962); Vort v. Westbrook, 
221 Ga. 39, 142 S.E.2d 813 (1965); Wittke v. 
Home's Enters., Inc., 118 Ga. App. 211, 162 
S.E.2d 898 (1968); Corley v. Lewless, 227 Ga. 
745, 182 S.E.2d 766 (1971); Reeves v. 
Bridges, 248 Ga. 600, 284 S.E.2d 416 (1981). 

Decisions Under Prior Law 

Liability under this section does not arise 
out of mere relationship of parent and child. 

Bell v. Adams, 111 Ga. App. 819, 143 S.E.2d 
413 (1965) (decided under former Ga. L. 
1956, p. 699, § 1). 

A "willful and wanton act" is one done 
intentionally or with reckless disregard for 
consequences. Landers v. Medford, 108 Ga. 
App. 525, 133 S.E.2d 403 (1963) (decided 
under former Ga. L. 1956, p. 699, § 1). 

A willful and wanton act in the damaging 
or destruction of property is one so reckless 
as to evince an entire want of care on the 
part of the defendants so as to raise a 
presumption of a conscious indifference to 
the consequences. Mere negligence can 
never amount to such aggravating circum- 
stances. Pennsylvania Threshermen & Farm- 
ers Mut. Cas. Ins. Co. v. Hill, 113 Ga. App. 
283, 148 S.E.2d 83 (1966) (decided under 
former Ga. L. 1956, p. 699, § 1). 

Vandalism is willful or malicious destruc- 
tion of property. Pennsylvania Threshermen 
& Farmers Mut. Cas. Ins. Co. v. Hill, 113 Ga. 
App. 283, 148 S.E.2d 83 (1966) (decided 
under former Ga. L. 1956, p. 699, § 1). 

Vandalism does not encompass within its 
meaning acts directed only against persons. 
Bell v. Adams, 111 Ga. App. 819, 143 S.E.2d 
413 (1965) (decided under former Ga. L. 
1956, p. 699, § 1). 



Section generally not applicable to per- 
sonal injuries. — This section does not apply 
to the willful torts of a minor under 18 which 
are directed against the persons of others 
and not directed against property. Browder 
v. Sloan, 111 Ga. App. 693, 143 S.E.2d 13 
(1965) (decided under former Ga. L. 1956, 
p. 699, § 1). 

The liability of a parent for the tort of his 
child as provided in this section applies only 
to acts of the child directed to the damaging 
of property and to injuries to the person 
resulting naturally and proximately from 
those acts. Browder v. Sloan, 111 Ga. App. 
693, 143S.E.2d 13 (1965); Bell v. Adams, 111 
Ga. App. 819, 143 S.E.2d 413 (1965) (decid- 
ed under former Ga. L. 1956, p. 699, § 1) 
(decided under former Ga. L. 1956, p. 699, 

§ 1). 

Liability of a parent for the tort of his 
child in directly inflicting injury on the 
person of another is governed by the ordi- 
nary principles of liability of a principal for 
the acts of his agent or a master for his 
servant. Bell v. Adams, 1 1 1 Ga. App. 819, 143 
S.E.2d 413 (1965) (decided under former 
Ga. L. 1956, p. 699, § 1). 

Section modified common law. — This 
section modifies the general rule that liabil- 
ity of a parent for an injury committed by his 
child is governed by the ordinary principles 
of liability of a principal for the acts of his 
agent, or a master for his servant, and that a 
father is not liable for the tort of a minor 
child, with which he was in no way con- 
nected, which he did not ratify, and from 
which he did not derive any benefit, merely 
because of the relationship of parent and 
child. Sagnibene v. State Wholesalers, Inc., 
117 Ga. App. 239, 160 S.E.2d 274 (1968) 
(decided under former Ga. L. 1966, p. 424, 

§ D- 

This section is not applicable where child, 
being only four years old, was not capable of 
committing willful and wanton act. 

Sagnibene v. State Wholesalers, Inc., 117 Ga. 
App. 239, 160 S.E.2d 274 (1968) (decided 
under former Ga. L. 1966, p. 424, § 1). 

Section held unconstitutional. — This sec- 
tion contravenes the due process clauses of 
the state and federal Constitutions and is 
void. Corley v. Lewless, 227 Ga. 745, 182 
S.E.2d 766 (1971) (decided under former 
Ga. L. 1966, p. 424, § 1). 



217 



51-2-4 



TORTS 
RESEARCH REFERENCES 



51-2-4 



Am. Jur. 2d. — 59 Am. Jur. 2d, Parent and 

Child, § 121 et seq. 

C.J.S. — 67A C.J.S., Parent and Child, 
§ 123 et seq. 

ALR. — Liability of parent for injury 
inflicted by minor child with dangerous in- 
strumentality left accessible to him, 12 ALR 
812. 

Liability of owner under "family-purpose" 
doctrine, for injuries by automobile while 
being used by member of his family, 64 ALR 
844, 88 ALR 601, 100 ALR 1021, 132 ALR 
981. 

Infant's liability in tort for own act, or 
right to recover for another's tort, as af- 
fected by its connection with infant's con- 
tract, 127 ALR 1441. 

Automobile owner's common-law liability 
for negligence in entrusting car to known 
incompetent, reckless, or inexperienced per- 
son as affected by statute limiting owner's 
liability to use within terms of consent, 163 
ALR 1418. 

Construction and effect of statutes which 
make parent, custodian, or other person 
signing minor's application for vehicle oper- 
ator's license liable for licensee's negligence 
or willful misconduct, 26 ALR2d 1320. 

Liability of person permitting child to 
have gun, or leaving gun accessible to child, 



for injury inflicted by the latter, 68 ALR2d 
782. 

Validity and construction of statutes mak- 
ing parents liable for torts committed by 
their minor children, 8 ALR3d 612. 

Modern status of family purpose doctrine 
with respect to motor vehicles, 8 ALR3d 
1191. 

Parents' liability for injury or damage in- 
tentionally inflicted by minor child, 54 
ALR3d 974. 

Liability of parent for injury caused by 
child riding a bicycle, 70 ALR3d 611. 

Liability of owner of powerboat for injury 
or death allegedly caused by one permitted 
to operate boat by owner, 71 ALR3d 1018. 

Liability of one who sells gun to child for 
injury to third party, 4 ALR4th 331. 

Criminal responsibility of parent for act of 
child, 12ALR4th673. 

Modern trends as to tort liability of child 
of tender years, 27 ALR4th 15. 

Construction and effect of statutes which 
make parent, custodian, or other person 
signing minor's application for vehicle oper- 
ator's license liable for licensee's negligence 
or willful misconduct, 45 ALR4th 87. 

Jurisdiction or power of juvenile court to 
order parent of juvenile to make restitution 
for juvenile's offense, 66 ALR4th 985. 



51-2-4. Liability for torts of independent employee. 

An employer generally is not responsible for torts committed by his 
employee when the employee exercises an independent business and in it 
is not subject to the immediate direction and control of the employer. 
(Orig. Code 1863, § 2905; Code 1868, § 2911; Code 1873, § 2962; Code 
1882, § 2962; Civil Code 1895, § 3818; Civil Code 1910, § 4414; Code 1933, 
§ 105-501.) 



Cross references. — Liability of employers 
for injuries to employees generally, § 34-7-20 
et seq. 

Law reviews. — For article surveying torts 
law, see 34 Mercer L. Rev. 271 (1982). 

For note discussing the doctrine of 
respondeat superior, see 2 Ga. St. B.J. 478 
(1966). 

For comment on Nichols v. G.L. High 
Motor Co., 65 Ga. App. 397, 15 S.E.2d 805 



(1941), and Andrews v. Norvell, 65 Ga. App. 
241, 15 S.E.2d 808 (1941), see 4 Ga. BJ. 46 
(1941). For comment on Ellenberg v. 
Pinkerton's, Inc., 125 Ga. App. 648, 188 
S.E.2d 911 (1972), holding employer defen- 
dant may not use independent contractor 
defense to invasion of privacy suit resulting 
from actions of investigator working in his 
behalf, see 9 Ga. St. B.J. 519 (1973). 



218 



51-2-4 



Analysis 



IMPUTABLE NEGLIGENCE 
JUDICIAL DECISIONS 



51-2-4 



General Consideration 
Applicability to Specific Cases 



General Consideration 

Applicability. — This section pertains to 
an employer's liability for the negligence of 
an independent contractor and thus is inap- 
plicable to cases which involve intentional 
torts. Peachtree-Cain Co. v. McBee, 170 Ga. 
App. 38, 316 S.E.2d 9 (1984), aff'd, 254 Ga. 
91, 327S.E.2d 188 (1985). 

This section and § 51-2-5 limit an employ- 
er's vicarious liability only and do not apply 
to a claim arising from the employer's own 
conduct. England v. Beers Constr. Co., 224 
Ga. App. 44, 479 S.E.2d 420 (1996). 

Independent contractor is person em- 
ployed to perform work on terms that he is 
to be free from control of employer as 
respects the manner in which the details of 
the work are to be executed. Bentley v. Jones, 
48 Ga. App. 587, 173 S.E. 737 (1934). 

Term "independent business," as used in 
this section, must necessarily be taken to 
mean a business or employment separate 
and independent from business of employer. 
Year wood v. Peabody, 45 Ga. App. 451, 164 
S.E. 901 (1932); Buchanan v. Canada Dry 
Corp., 138 Ga. App. 588, 226 S.E.2d 613 
(1976). 

Employer is not liable for torts committed 
by an independent contractor, unless the 
work is in itself unlawful or attended with 
danger to others, or the wrongful act consists 
in the violation of duty imposed by the 
employer, or is in violation of a duty imposed 
by statute, or the employer interferes and 
assumes control so as to create the relation 
of master and servant, or ratifies the unau- 
thorized wrong of the independent contrac- 
tor. Massee & Felton Lumber Co. v. Macon 
Cooperage Co., 44 Ga. App. 590, 162 S.E. 
396 (1932). 

Where a corporation contracts with an 
individual, exercising an independent em- 
ployment, for him to do a work not in itself 
unlawful or attended with danger to others, 
such work to be done according to the 
contractor's own methods and not subject to 
the employer's control or orders, except as 
to results to be obtained, the employer is not 



liable for the wrongful or negligent acts of 
such independent contractor or of his ser- 
vants. Quinan v. Standard Fuel Supply Co., 
25 Ga. App. 47, 102 S.E. 543 (1920); Zurich 
Gen. Accident & Liab. Ins. Co. v. Lee, 36 Ga. 
App. 248, 136 S.E. 173 (1926); Massee 8c 
Felton Lumber Co. v. Macon Cooperage Co., 
44 Ga. App. 590, 162 S.E. 396 (1932). 

The employer of an independent contrac- 
tor is not responsible for the contractor's 
negligent acts. United States v. Aretz, 248 Ga. 
19, 280S.E.2d345 (1981). 

Where the work is not inherently danger- 
ous except as a result of the negligence of 
the contractor respondeat superior does not 
apply. St. Paul Cos. v. Capitol Office Supply 
Co., 158 Ga. App. 748, 282 S.E.2d 205 
(1981). 

Exceptions to general rule provided by 
statute. — An employer is not liable for acts 
of his independent contractor unless the 
facts and circumstances bring the case under 
the exceptions to such rule, plainly and 
unmistakably stated in this section and 
§ 51-2-5. Robbins Home Imp. Co. v. Guthrie, 
213 Ga. 138, 97 S.E.2d 153 (1957). 

The rule in employer-independent con- 
tractor situations is one of no liability on the 
part of the employer, unless some of the 
rule's recognized exceptions as set out in 
§ 51-2-5 are met. Moore v. J.C. Pennev Co., 
107 Ga. App. 254, 129 S.E.2d 538 (1963). 

Georgia law imposes liability on an em- 
ployer for the torts of an independent con- 
tractor only when a duty imposed by statute, 
and not under common law, has been vio- 
lated. Uniroyal, Inc. v. Hood, 588 F.2d 454 
(5th Cir. 1979). 

Landowners who surrender a portion of 
their premises to independent contractors 
are relieved of their duties with regard to 
that portion of the premises they no longer 
control. PYA/Monarch, Inc. v. Higley, 219 
Ga. App. 199, 464 S.E.2d 630 (1995). 

Section 51-2-5 does not represent an ex- 
clusive list of exceptions to the limitation of 
liability contained in this section. 
Peachtree-Cain Co. v. McBee, 254 Ga. 91, 
327 S.E.2d 188 (1985). 



219 



51-2-4 



TORTS 



51-2-4 



General Consideration (Cont'd) 

Test to determine status as independent 
contractor. — The test to be applied in 
determining the relationship of the parties 
under the contract lies in whether the con- 
tract gives, or the employer assumes, the 
right to control the time and manner of 
executing the work, as distinguished from 
the right merely to require results in confor- 
mity to the contract. Zurich Gen. Accident & 
Liab. Ins. Co. v. Lee, 36 Ga. App. 248, 136 
S.E. 173 (1926); Massee 8c Felton Lumber 
Co. v. Macon Cooperage Co., 44 Ga. App. 
590, 162 S.E. 396 (1932); Yearwood v. 
Peabody, 45 Ga. App. 451, 164 S.E. 901 
(1932); Cooper v. Dixie Constr. Co., 45 Ga. 
App. 420, 165 S.E. 152 (1932); Bendey v. 
Jones, 48 Ga. App. 587, 173 S.E. 737 (1934); 
Whitehall Chevrolet Co. v. Anderson, 53 Ga. 
App. 406, 186 S.E. 135 (1936); Fidelity 8c 
Cas. Co. v. Clements, 53 Ga. App. 622, 186 
S.E. 764 (1936); De Bord v. Procter 8c Gam- 
ble Distrib. Co., 58 F. Supp. 157 (N.D. Ga. 
1943), aff'd, 146 F.2d 54 (5th Cir. 1944); 
Morris v. Constitution Publishing Co., 84 Ga. 
App. 816, 67 S.E.2d 407 (1951); Federated 
Mut. Implement 8c Hdwe. Ins. Co. v. Elliott, 
88 Ga. App. 266, 76 S.E.2d 568 (1953); Weiss 
v. Kling, 96 Ga. App. 618, 101 S.E.2d 178 
(1957); Greenbaum v. Brooks, 110 Ga. App. 
661, 139 S.E.2d 432 (1964); Savannah Elec. 
8c Power Co. v. Edenfield, 118 Ga. App. 531, 
164 S.E.2d 366 (1968); Hotel Storage, Inc. v. 
Fesler, 120 Ga. App. 672, 172 S.E.2d 174 
(1969); Smith v. Poteet, 127 Ga. App. 735, 
195 S.E.2d 213 (1972); Farmers Mut. Exch. 
of Commerce, Inc. v. Sisk, 131 Ga. App. 206, 
205 S.E.2d 438 (1974); Warner v. Arnold, 
133 Ga. App. 174, 210 S.E.2d 350 (1974); 
Buchanan v. Canada Dry Corp., 138 Ga. 
App. 588, 226 S.E.2d 613 (1976); Jones v. 
International Inventors, Inc. E., 429 F. Supp. 
119 (N.D. Ga. 1976); Hodges v. Doctors 
Hosp., 141 Ga. App. 649, 234 S.E.2d 116 
(1977); Sloan v. Hobbs Sporting Goods 
Shop, 145 Ga. App. 255, 243 S.E.2d 673 
(1978); Walton v. United States, 484 F. Supp. 
568 (S.D. Ga. 1980); Bowman v. C.L. 
McCord Land 8c Pulpwood Dealer, Inc., 174 
Ga. App. 914, 331 S.E.2d 882 (1985). 

The fact that an employee might not be 
generally engaged in the particular business 
or occupation carried on by him under his 
special contract with the employer would not 



prevent the relation between them from 
being that of an employer and independent 
contractor, if the work undertaken was not 
under a contract whereby the relationship of 
master and servant arose. Yearwood v. 
Peabody, 45 Ga. App. 451, 164 S.E. 901 
(1932). 

Where one contracts with an individual 
exercising an independent employment, for 
him to do a work not in itself unlawful or 
attended with danger to others, such work to 
be done according to the contractor's own 
methods, and not subject to the employer's 
control or orders, except as to results to be 
obtained, the employer is not liable for the 
wrongful or negligent acts of such indepen- 
dent contractor or his servants. This rule is 
applicable under the provisions of the Work- 
er's Compensation Act. Bentley v. Jones, 48 
Ga. App. 587, 173 S.E. 737 (1934). 

Undoubtedly one cannot shield himself 
under the doctrine of independent contrac- 
tors by simply employing another person, 
and giving him a general authority to pro- 
cure others to assist in work which requires 
no care or skill or experience, but which is 
merely such as might be done by any person 
with sufficient physical strength. Swift & Co. 
v. Alston, 48 Ga. App. 649, 173 S.E. 741 
(1934). 

One who carries on an independent busi- 
ness and who contracts with another to 
perform services for him, being answerable 
only for the result and not being under the 
control of his employer as to the time, 
mariner, or method of doing the work, is an 
independent contractor for whose torts the 
other contracting party is not liable except 
in a few stated exceptions. St. Paul Cos. v. 
Capitol Office Supply Co., 158 Ga. App. 748, 
282S.E.2d 205 (1981). 

Where the contract of employment clearly 
denominates the other party as an indepen- 
dent contractor, that relationship is pre- 
sumed to be true unless the evidence shows 
that the employer assumed such control. 
Ross v. Ninety-Two W., Ltd., 201 Ga. App. 
887, 412 S.E.2d 876 (1991). 

Controlling question is not whether em- 
ployer actually did assume control of man- 
ner of doing work, but whether he had right 
to do so under contract. Bentley v. Jones, 48 
Ga. App. 587, 173 S.E. 737 (1934); Savannah 
Elec. 8c Power Co. v. Edenfield, 1 18 Ga. App. 
531, 164 S.E.2d 366 (1968); Hodges v. Doc- 



220 



51-2-4 



IMPUTABLE NEGLIGENCE 



51-2-4 



tors Hosp., 141 Ga. App. 649, 234 S.E.2d 116 
(1977). 

Independence of contract. — The fact 
that a contractor employs, controls, and 
assumes entire charge over his workmen and 
that the employer neither has nor exercises 
any control, has, by many courts, including 
our own, been held practically decisive of 
the question of the independence of the 
contract. Bentley v. Jones, 48 Ga. App. 587, 
173S.E. 737 (1934). 

Employer's right to control inferred in 
certain cases. — Where one is employed 
generally to perform certain services for 
another, and there is no specific contract to 
do a certain piece of work according to 
specifications for a stipulated sum, it is infer- 
able that the employer has retained the right 
to control the manner, method, and means 
of the performance of the contract, and that 
the employee is not an independent contrac- 
tor. Swift & Co. v. Alston, 48 Ga. App. 649, 
173 S.E. 741 (1934). 

The ground upon which some decisions 
may have been said to have proceeded was 
that, in view of the humble industrial status 
of the persons employed and the simple 
character of the work to be done, the only 
admissible inference was that the employers 
intended to retain the right to give direction 
in regard to details of the work. Swift & Co. 
v. Alston, 48 Ga. App. 649, 173 S.E. 741 
(1934). 

Limited control by employer not equiva- 
lent to master-servant relationship. — There 
is in all agreements to do specific work for 
another the necessary and implied power in 
the person for whom the work is to be done 
to supervise the work, to see that the desired 
results are attained, and to reject all prod- 
ucts that do not come up to specifications, 
but this control would not change the rela- 
tion of employer and independent contrac- 
tor into that of master and servant Bendey v. 
Jones, 48 Ga. App. 587, 173 S.E. 737 (1934). 

The right of the employer to exercise a 
certain control over the work, where the 
control reserved does not apply to the man- 
ner of doing the details of the work, and 
does not thereby take the work out of the 
hands of the contractor, but goes merely to a 
general supervision to ensure that the ends 
prescribed by the contract shall be substan- 
tially met, does not destroy the indepen- 
dence of the relation. Bendey v. Jones, 48 
Ga. App. 587, 173 S.E. 737 (1934). 



If relationship of employer and indepen- 
dent contractor is established, merely taking 
steps to see that the contractor carries out 
his agreement, by supervision of the inter- 
mediate results obtained, or reserving the 
right of dismissal on grounds of incompe- 
tence, is not such interference and assump- 
tion of control as will render the employer 
liable for the torts of the contractor. Ameri- 
can Sec. Life Ins. Co. v. Gray, 89 Ga. App. 
672, 80 S.E.2d 832 (1954). 

Supervision of independent contractor. — 
Employer is not bound to supervise progress 
of contract work for purpose of preventing 
the commission of a collateral tort by inde- 
pendent contractor. The employer has the 
right to presume that the independent con- 
tractor will do the work in a prudent and 
proper manner. Dekle v. Southern Bell Tel. 
8c Tel. Co., 208 Ga. 254, 66 S.E.2d 218 
(1951), overruled on other grounds, 
Peach tree-Cain Co. v. McBee, 254 Ga. 91, 
327 S.E.2d 188 (1985). 

Employer liable where work inherendy 
dangerous regardless of independent status. 

— Where the work done is inherendy dan- 
gerous, or involves peculiar risk of bodily 
harm to others unless special precautions 
are taken, this duty is nondelegable and the 
employer is liable for negligence of the 
contractor which produces a result falling 
short of what it was the employer's duty to 
attain. Community Gas Co. v. Williams, 87 
Ga. App. 68, 73 S.E.2d 119 (1952). 

Where the work to be done is dangerous 
only because of the absence of proper care, 
the doctrine of nonresponsibility for the 
negligence of the independent contractor 
may apply, but if the work is dangerous in 
itself unless reasonable care is taken to ren- 
der it harmless, this doctrine does not apply. 
Community Gas Co. v. Williams, 87 Ga. App. 
68, 73S.E.2d 119 (1952). 

Employer under no general duty to con- 
tractor's employees. — The general rule is 
that the independent contractor's employer 
is under no duty to take affirmative steps to 
guard or protect the contractor's employees 
against the consequences of the contractor's 
negligence or to provide for their safety. 
United States v. Aretz, 248 Ga. 19, 280 S.E.2d 
345 (1981). 

Compliance with requirements of automo- 
bile and disability insurance and safety rules. 

— Where the employer has no contract right 



221 



51-2-4 



TORTS 



51-2-4 



General Consideration (Cont'd) 

to and had not assumed control of the time, 
the manner and the method of performance 
of the employee, a requirement that the 
employer purchase auto insurance and 
worker's compensation and comply with 
safety rules and regulations for the employ- 
ee's benefit did not bring the employer with 
the doctrine of respondeat superior. Slater v. 
Canal Wood Corp., 178 Ga. App. 877, 345 
S.E.2d 71 (1986). 

Proof of independent contractor status. 
— Where there is testimony uncontradicted 
that the employer did or did not assume and 
under the oral contract either did have or 
did not have the right to any control over the 
manner of doing the details of the work to 
be performed, such testimony prevails 
against any antagonistic evidence that may 
be introduced. Bentley v. Jones, 48 Ga. App. 
587, 173 S.E. 737 (1934). 

Relationship between parties is for jury as 
the trier of fact to determine. Smith v. 
Poteet, 127 Ga. App. 735, 195 S.E.2d 213 
(1972). 

Cited in Harrison v. Kiser, 79 Ga. 588, 4 
S.E. 320 (1887); Adanta & F.R.R. v. Kimberly, 
87 Ga. 161, 13 S.E. 277 (1891); Louisville 8c 
N.R.R. v. Hughes, 134 Ga. 75, 67 S.E. 542 
(1910); Lamb v. Fulton Bag & Cotton Mills, 
26 Ga. App. 572, 106 S.E. 607 (1921); Cen- 
tral of Ga. Ry. v. Lawley, 33 Ga. App. 375, 126 
S.E. 273 (1925); Hughes v. Weekley Elevator 
Co., 37 Ga. App. 130, 138 S.E. 633 (1927); 
Poss Bros. Lumber Co. v. Haynie, 37 Ga. 
App. 60, 139 S.E. 127 (1927); Calvert v. 
Adanta Hub Co., 37 Ga. App. 295, 139 S.E. 
917 (1927); Davis v. Starrett Bros., 39 Ga. 
App. 422, 147 S.E. 530 (1929); Lovelace v. 
Ivey, 41 Ga. App. 204, 152 S.E. 266 (1930); 
Henderson v. Nolting First Mtg. Corp., 184 
Ga. 724, 193 S.E. 347 (1937); Goldman v. 
Clisby, 62 Ga. App. 516, 8 S.E.2d 701 (1940); 
Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 
549, 43 S.E.2d 784 (1947); Rodgers v. Styles, 
100 Ga. App. 124, 110 S.E.2d 582 (1959); 
City of Villa Rica v. Couch, 281 F.2d 284 (5th 
Cir. 1960); Newsome v. Dunn, 103 Ga. App. 
656, 120 S.E.2d 205 (1961); Webb v. Wright, 
103 Ga. App. 776, 120 S.E.2d 806 (1961); 
Townsend & Ghegan Enters, v. W.R. Bean & 
Son, 117 Ga. App. 109, 159 S.E.2d 776 
(1968); Moore v. Oglethorpe Sanitarium, 
Inc., 129 Ga. App. 310, 199 S.E.2d 615 



(1973); Neda Constr. Co. v. Jenkins, 137 Ga. 
App. 344, 223 S.E.2d 732 (1976); Johnson v. 
Lanier, 140 Ga. App. 522, 231 S.E.2d 428 
(1976); Allen v. Cooper, 145 Ga. App. 555, 
244 S.E.2d 98 (1978); Ballard v. Turner, 147 
Ga. App. 584, 249 S.E.2d 637 (1978); Fields 
v. B & B Pipeline Co., 147 Ga. App. 875, 250 
S.E.2d 582 (1978); Horn v. C.L. Osborn 
Contracting Co., 591 F.2d 318 (5th Cir. 
1979); Harrison 8c Ellis, Inc. v. Nashville 
Milling Co., 156 Ga. App. 697, 275 S.E.2d 
374 (1980); American Cyanamid Co. v. Ring, 
158 Ga. App. 525, 281 S.E.2d 247 (1981); 
Bayliner Marine Corp. v. Prance, 159 Ga. 
App. 456, 283 S.E.2d 676 (1981); Paul v. 
Jones, 160 Ga. App. 671, 288 S.E.2d 13 
(1981); Brewer v. Williams, 167 Ga. App. 
151, 305 S.E.2d 891 (1983); Bryant v. Village 
Centers, Inc., 167 Ga. App. 220, 305 S.E.2d 
907 (1983); Wilmock, Inc. v. French, 185 Ga. 
App. 259, 363 S.E.2d 789 (1987); Baughcum 
v. Cecil Key Paving, Inc., 190 Ga. App. 21, 
378 S.E.2d 151 (1989); Ledbetter v. Delight 
Whsle. Co., 191 Ga. App. 64, 380 S.E.2d 736 
(1989); Scott v. McDonald, 218 Ga. App. 810, 
463 S.E.2d 379 (1995); Fortune v. Principal 
Fin. Group, Inc., 219 Ga. App. 367, 465 
S.E.2d 698 (1995); Williams v. Georgia Dep't 
of Cors., 224 Ga. App. 571, 481 S.E.2d 272 
(1997); Johnson v. Kimberly Clark, 233 Ga. 
App. 508, 504 S.E.2d 536 (1998). 

Applicability to Specific Cases 

Amusement parks. — One who, by con- 
tract or otherwise, controls the operation of 
a fair and of the premises, invites the public 
to attend, and receives a percentage of the 
profits cannot avoid liability for a patron's 
injury resulting from defective amusement 
apparatus or devices on the grounds that the 
concessionaire in control of those devices is 
an independent contractor. Hayes v. Century 
21 Shows, Inc., 116 Ga. App. 490, 157 S.E.2d 
779 (1967). 

Automobiles and motor vehicles. — 
Where the owner of an automobile delivered 
it to A for the purpose of being sold by A to 
any purchaser whom A may procure, and the 
entire control of the car was surrendered to 
A, A was not the servant of the owner, but an 
independent contractor. Simril v. Davis, 42 
Ga. App. 277, 155 S.E. 790 (1930). 

Where A, acting as an independent con- 
tractor for the owner, and while operating 
the car in a demonstration drive for a pro- 



222 



51-2-4 



IMPUTABLE NEGLIGENCE 



51-2-4 



spective buyer who was riding in the car, 
negligently injured another, the owner was 
not liable in an action for damages for the 
injury; even though the owner knew that A 
intended to operate the car on a demonstra- 
tion drive for the purpose of securing, if 
possible, a purchaser for the car, and that he 
(the owner) furnished the gasoline for the 
demonstration. Simril v. Davis, 42 Ga. App. 
277, 155 S.E. 790 (1930). 

Where defendant company did not have 
any right to direct the manner, method, or 
means of performance of the work of oper- 
ating and driving of truck, owned by an- 
other, the driver of the truck was not the 
defendant's servant, but was the servant of 
the owner, an independent contractor, and 
the defendant was not liable for the negli- 
gence of the driver of the truck in its oper- 
ation along a public highway, resulting in 
injury to the plaintiff. Brown v. Georgia 
Kaolin Co., 60 Ga. App. 347, 4 S.E.2d 100 
(1939). 

An automobile salesman employed on a 
commission basis, who operates his own 
automobile to aid him in carrying on his 
employment, and whose movements are not 
controlled by his employer, is, with respect to 
the operation of his automobile, an indepen- 
dent contractor, and the employer is not 
liable in damages for an injury to a person 
who was riding in the car with the employee 
and to whom he was trying to sell an auto- 
mobile of his employer at the time, although 
the injury was caused by the negligence of 
the employee in the operation of his auto- 
mobile. Whitehall Chevrolet Co. v. Ander- 
son, 53 Ga. App. 406, 186 S.E. 135 (1936). 

When an owner contracts with another as 
independent contractor to cause his car to 
be driven or transported to a specified place, 
to be there redelivered to him, and, pursu- 
ant to the contract, delivers the car to the 
representative of the contractor, from that 
time on until the car is redelivered to the 
owner, the car is not in the owner's custody 
or control, and the owner is not liable for 
injuries caused by the servants or agents of 
the contractor while in control of or operat- 
ing it. De Bord v. Proctor & Gamble Distrib. 
Co., 146 F.2d 54 (5th Cir. 1944). 

Automotive repairs. — The owner of an 
automobile is not liable for injuries caused 
by the negligence of a garage man, to whom 
the car was surrendered for repairs. Wooley 
v. Doby, 19 Ga. App. 797, 92 S.E. 295 (1917). 



Where owner of truck, through his agent 
and driver, delivers it to a mechanic for the 
purpose of repair, and surrenders the entire 
control of it to him, the mechanic is not the 
servant of the owner, but an independent 
contractor, and where the mechanic, under 
such circumstances, negligently injures an- 
other while testing the truck, the owner is 
not liable in an action for damages for the 
injury; and fact test was being made with 
consent of agent of owner does not change 
the rule, it not appearing that agent was 
riding in the truck or exercising any control 
over the mechanic's operation of it during 
test. Ousley Co. v. Ledbetter, 44 Ga. App. 
375, 161 S.E. 634 (1931). 

The person undertaking repairs to anoth- 
er's automobile may not be a mechanic by 
trade, and may not be generally engaged in 
the business of repairing automobiles, but 
may be a domestic servant of a third person, 
since the labor undertaken under the con- 
tract is independent of the employer, and is 
thus an "independent business" within the 
meaning of this section so far as the parties 
are concerned. Yearwood v. Peabody, 45 Ga. 
App. 451, 164 S.E. 901 (1932). 

Where the owner of an automobile deliv- 
ers it to another person, toward whom he 
does not stand in the relationship of master 
to servant, for the purpose of repair, and 
surrenders the entire control of the automo- 
bile to that person, and neither reserves by 
the contract, nor assumes, the right to con- 
trol the time, manner, or method in which 
the work is done, the person undertaking 
the labor being responsible to the owner 
only for results, the relation between the 
parties is not that of master and servant, but 
that of employer and independent contrac- 
tor. This is true even though the person 
undertaking such repairs may not be a me- 
chanic by trade, and may not be generally 
engaged in the business of repairing auto- 
mobiles, but may be a domestic servant of a 
third person, since the labor undertaken 
under the contract is independent of the 
employer, and is thus an "independent busi- 
ness" within the meaning of this section so 
far as the parties are concerned. Where such 
mechanic, while testing the automobile dur- 
ing the process of the work undertaken 
thereon, negligently injures a third person, 
the owner of the automobile is not liable in 
damages on account of such injury. De 



223 



51-2-4 



TORTS 



51-2-4 



Applicability to Specific Cases (Cont'd) 

Loach v. Hicks, 50 Ga. App. 239, 177 S.E. 822 
(1934). 

Automobile repossession. — Repossession 
of automobiles constitutes function which 
must be regarded as a regular part of Ford 
Motor Credit Company's business activities. 
McGuire v. Ford Motor Credit Co., 162 Ga. 
App. 312, 290 S.E.2d 487 (1982). 

Banks. — Where tortfeasor stated that he 
was an independent contractor with relation 
to the bank and unequivocally denied the 
existence of an employer-employee relation- 
ship, and the victim introduced no direct 
proof to contradict that testimony, the bare 
possibility that the bank might have retained 
some control (raised only by the circum- 
stances) was not sufficient to prevent sum- 
mary judgment for the bank. Deitrich v. 
Trust Co. Bank, 179 Ga. App. 330, 346 S.E.2d 
107 (1986). 

Carriers. — Where A and B are the joint 
owners of lumber and sell the same to be 
delivered at another place, and B owns a 
truck and employs and pays C by the day to 
drive the truck, and B agrees with A to 
transport and deliver the lumber for which A 
is to pay B a stipulated amount per thousand 
feet for hauling his part of the lumber, B is 
an independent contractor in the transpor- 
tation of such lumber, and A cannot be held 
liable for an alleged tort committed by C, the 
driver of the truck in the transportation of 
such lumber. Wallace v. Price, 55 Ga. App. 
783, 190 S.E. 273 (1937). 

Construction contractors and subcontrac- 
tors. — A person who is employed under a 
contract whereby he agrees to drill a well 
and furnish the casing therefor for $4.00 a 
foot, where it does not appear that the 
employer has the right to direct the work or 
to control the manner of its performance, is 
employed to bring about a result, and is 
therefore an "independent contractor." 
Edmondson v. Town of Morven, 41 Ga. App. 
209, 152 S.E. 280 (1930). 

Where a general contractor is in control of 
the premises, such contractor obtains the 
status of occupier so that it has a responsi- 
bility to invitees and others entering the 
premises which is equivalent to that duty 
owed by the owner of the premises. Reed v. 
Batson-Cook Co., 122 Ga. App. 803, 178 
S.E.2d728 (1970). 



If there was any negligence on the part of 
a subcontractor in installing a septic tank, it 
was not imputable to the builder. Hall v. 
Richardson Homes, Inc., 168 Ga. App. 593, 
309S.E.2d825 (1983). 

The contract to build a house, with its 
attendant obligations, is between the buyer 
and builder, not the buyer and any indepen- 
dent contractor. Hudgins v. Bacon, 171 Ga. 
App. 856, 321 S.E.2d 359 (1984). 

Where, under a construction contract, the 
duty of providing safe working conditions 
was squarely upon the independent contrac- 
tor and not the owner, and there was com- 
pliance with the clear terms of the contract, 
the owner was not liable for the contractor's 
wrongful or negligent breach of this duty, 
and since the owner did not owe an em- 
ployee of an independent subcontractor any 
duty to provide safe working conditions, the 
owner had no liability to the employee. 
Modlin v. Swift Textiles, Inc., 180 Ga. App. 
726, 350 S.E.2d 273 (1986). 

Where an insurance company did not 
retain or exercise any right of control over 
the time, manner or method of perfor- 
mance of a repair contractor's work, the 
insurance company could not be held vicar- 
iously liable for the contractor's alleged neg- 
ligence under the doctrine of respondeat 
superior. Carter v. Allstate Ins. Co., 197 Ga. 
App. 738, 399 S.E.2d 500 (1990). 

The trial court correcdy determined that 
general contractor, and not subcontractor, 
was responsible to homeowners for the 
proper erection of a garage pursuant to the 
written agreement which provided that the 
scope of the work to be performed by the 
general contractor included the part that 
later proved defective. Crispens Enter. Inc. v. 
Halstead, 209 Ga. App. 133, 433 S.E.2d 353 
(1993). 

Even though a contract between a tele- 
phone company and contractor for installa- 
tion of a utility pole and underground cable 
denominated the contractor as indepen- 
dent, it also gave the company a significant 
amount of control over the time, method 
and manner of executing the work, and the 
trial court did not err in finding that the 
installer was not an independent contractor. 
Bellsouth Telecommunications, Inc. v. 
Helton, 215 Ga. App. 435, 451 S.E.2d 76 
(1994). 

Debt collector. — One operating a collec- 
tion agency whereby he undertakes the col- 



224 



51-2-4 



IMPUTABLE NEGLIGENCE 



51-2-4 



lection of debts on a commission, and whose 
services are in no wise subject to the employ- 
er's control or orders as to the time, manner, 
or method of their execution, does not 
occupy the status of a servant, but must be 
taken as exercising an independent busi- 
ness. Where one contracts with an individual 
thus exercising an independent business, for 
him to do a work not in itself unlawful or 
attended with danger to others, the em- 
ployer is not liable for the wrongful or 
negligent acts of the independent contractor 
or his servants. Calvert v. Atlanta Hub Co., 37 
Ga. App. 295, 139 S.E. 917 (1927). 

Eminent domain. — Whether the statute 
embodied in this section and § 51-2-5 is 
exhaustive as to exceptions to the rule of 
nonliability of an employer for the acts of an 
independent contractor, it must yield to and 
cannot control the constitutional duty im- 
posed upon a condemnor to pay compensa- 
tion for the taking or damaging of private 
property for public purposes whether or not 
such taking or damaging was done by an 
independent contractor hired by the con- 
demnor. Fulton County v. Woodside, 223 Ga. 
316, 155 S.E.2d 404 (1967); Georgia Power 
Co. v.Jones, 122 Ga. App. 614, 178 S.E.2d 
265 (1970). 

Factory. — Factory was not liable for 
independent contractor's unauthorized, un- 
supervised use of a forklift to raise defen- 
dant to his truck for repairing factory fan. 
Murphy v. Blue Bird Body Co., 207 Ga. App. 
853, 429S.E.2d530 (1993). 

Floor cleaning service. — Where the 
agreement between defendant grocery store 
and floor cleaning service gave the store 
only the general right to order the work 
stopped or resumed, to inspect its process or 
to receive reports, to make suggestions or 
recommendations and to prescribe alter- 
ations and deviations, it was not shown that 
the store controlled work methods, and it 
was not error to grant summary judgment to 
the store on the issue that the service was an 
independent contractor. Feggans v. Kroger 
Co., 223 Ga. App. 47, 476 S.E.2d 822 (1996). 

Franchises. — Because the need for con- 
trols over the use of a trade name, in a 
franchise agreement authorizing such use, 
has generally been recognized, a franchise 
contract under which one operates a type of 
business on a royalty basis does not create an 
agency relationship. Buchanan v. Canada 



Dry Corp., 138 Ga. App. 588, 226 S.E.2d 613 
(1976). 

Hair salon. — In an action by a patron 
against a hair salon for injuries allegedly 
caused by the negligence of an apprentice 
facial esthetician, because of the relationship 
between the salon and the apprentice im- 
posed by this section and the evidence of the 
degree of control actually asserted by the 
salon, summary judgment that the salon was 
not liable under respondeat superior for any 
negligent acts of the apprentice and/or em- 
ployee was not authorized. Brown v. Who's 
Three, Inc., 217 Ga. App. 131, 457 S.E.2d 
186 (1995). 

Hospitals. — A noncharitable hospital is 
liable for the negligence of its nurses, order- 
lies, and other employees, in the perfor- 
mance of mere administrative or clerical 
duties which, though constituting a part of 
the patient's prescribed medical treatment, 
do not require the application of specialized 
technique or the understanding of a skilled 
physician or surgeon and which duties are 
not performed under the direct supervision 
of the attending physician. Moore v. 
Carrington, 155 Ga. App. 12, 270 S.E.2d 222 
(1980). 

Home repairs. — Homeowner who hired 
a third party who negligently repaired her 
air conditioner was not liable for the negli- 
gence of that party in the absence of evi- 
dence that she exercised any control over 
the work. Clemmons v. Griffin, 230 Ga. App. 
721,498S.E.2d99 (1998). 

Hotel franchisor. — After reviewing the 
franchise agreement an operating manual in 
their entirety, the trial court properly ruled 
that no franchise agreement existed between 
hotel franchisor and franchisee to hold the 
former liable for latter's alleged infliction of 
patron's injuries upon his ejection from the 
hotel lounge. McGuire v. Radisson Hotels 
Int'l, Inc., 209 Ga. App. 740, 435 S.E.2d 51 
(1993). 

Insurance companies. — While contract 
between solicitor of insurance and insurance 
company indicated relationship of indepen- 
dent contractor and employer, where evi- 
dence discloses that insurance company's 
state manager, by whom he was employed 
and under whose supervision he worked, 
allotted certain territory to him, and re- 
quired regular attendance at morning staff 
meetings, and that insurance company paid 



225 



51-2-4 



TORTS 



51-2-4 



Applicability to Specific Cases (Cont'd) 

for salesman's license, furnished him all 
literature and selling aids, required him to 
own an automobile as a condition of employ- 
ment; and that at the time of the collision 
salesman was on his way to interview a 
prospective customer whose name had been 
given him at the office, evidence authorizes 
finding that master-servant relationship ex- 
isted. American Sec. Life Ins. Co. v. Gray, 89 
Ga. App. 672, 80 S.E.2d 832 (1954). 

Lessor not liable to servant of lessee. — A 
lessor is not liable to a servant of the lessee 
arising from the negligence of the latter. 
Crusselle v. Pugh, 67 Ga. 430, 44 Am. R. 724 
(1881). 

Medical care provided to prisoners. — 
Where prisoner's doctor was an indepen- 
dent contractor, not an employee of the 
sheriff, he was not an employee within the 
meaning of subsection (b) and did not have 
official immunity; therefore, any negligence 
of the doctor could not be imputed to 
sheriff. Cantrell v. Thurman, 231 Ga. App. 
510, 499S.E.2d 416 (1998). 

Newspaper carrier. — The evidence de- 
manded the finding that the newscarrier 
whose act was alleged to have been the cause 
of the plaintiff's injuries was an independent 
contractor, and the trial court did not err in 
directing verdict for defendant company. 
Morris v. Constitution Publishing Co., 84 Ga. 
App. 816, 67 S.E.2d 407 (1951). 

Private security agencies. — Even though 
hirers of an independent security or protec- 
tive agency have generally been held not 
liable for negligent torts of agency person- 
nel, where the hirer did not exercise control 
over them, hirers have been held liable for 
the intentional torts of the agency's person- 
nel committed, in the scope of the agency's 
employment, against the hirer's invitees. 
United States Shoe Corp. v. Jones, 149 Ga. 
App. 595, 255 S.E.2d 73 (1979). 

Employer of a private detective agency was 
held liable to a third person for an invasion 
of privacy committed during the course of 



an investigation by the agency's personnel, 
despite the fact that the agency was em- 
ployed as an independent contractor. 
United States Shoe Corp. v. Jones, 149 Ga. 
App. 595, 255 S.E.2d 73 (1979). 

Rule that a property owner is liable for the 
intentional torts of an employee of a private 
security agency hired to guard the property 
is applicable where the agency is hired by the 
manager of the property rather than by the 
owner personally. Peach tree-Cain Co. v. 
McBee, 254 Ga. 91, 327 S.E.2d 188 (1985). 

Procuring investments. — An employer 
was not vicariously liable for a broker's acts 
in fraudulently inducing plaintiffs to invest 
in a nonexistent fund which he falsely rep- 
resented as a fund of the employer, since the 
acts were committed for the broker's per- 
sonal benefit, involved no participation by 
the employer, and were of no benefit to the 
employer. Hobbs v. Principal Fin. Group, 
Inc., 230 Ga. App. 410, 497 S.E.2d 243 
(1998). 

Retail sales. — If the manner in which the 
details of the work of selling defendant's 
automobiles are to be done is left to the 
salesman, and the defendant company is 
interested only in the result of the sales- 
man's work, the salesman is an independent 
contractor. Whitehall Chevrolet Co. v. 
Anderson, 53 Ga. App. 406, 186 S.E. 135 
(1936). 

Servant of stevedore. — The employer of 
a stevedore is not liable for injuries received 
by one of his employees. Rankin v. Mer- 
chants Miners' Transp. Co., 73 Ga. 229 
(1884). 

Workers' compensation. — Section 
34-9-11 of the Workers' Compensation Act 
expressly abrogated the vicarious liability 
provisions of § 51-2-2 and this section which 
would have otherwise permitted the parents 
of an employee of an independent subcon- 
tractor to bring a tort action against the 
general contractor/statutory employer. 
McCorkle v. United States, 737 F.2d 957 
(11th Cir. 1984). 



OPINIONS OF THE ATTORNEY GENERAL 



Test to determine status as independent 
contractor. — The true test whether a per- 
son employed is a servant or an independent 
contractor under this section is whether the 



employer, under the contract, whether oral 
or written, has the right to direct the time, 
the manner, the methods, and the means of 
the execution of the work, as contra- 



226 



51-2-4 



IMPUTABLE NEGLIGENCE 



51-2-4 



distinguished from the right to insist upon 
the contractor producing results according 
to the contract, or whether the contractor in 
the performance of the work contracted for 



is free from any control by the employer of 
the time, manner and method in the perfor- 
mance of the work. 1958-59 Op. Att'y Gen. p. 
390. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 27 Am. Jur. 2d, Employ- 
ment Relationship, § 459 et seq. 

C.J.S. — 30 C.J.S., Employer-Employee, 
§ 221 et seq. 

ALR. — Employment of incompetent, in- 
experienced, or negligent employee as inde- 
pendent ground of negligence toward one 
other than an employee, 8 ALR 574. 

Liability of master for injury inflicted by 
servant with firearms, 10 ALR 1087; 75 ALR 
1176. 

Liability of master for damage to person 
or property due to servant's smoking, 13 
ALR 997; 31 ALR 294. 

Duty of an employer with respect to the 
timbering of a mine, under the common law 
and general statutes, 15 ALR 1380. 

Liability for misconduct or negligence of 
messenger not directly related to the service, 
18 ALR 1416. 

General discussion of the nature of the 
relationship of employer and independent 
contractor, 19 ALR 226. 

Circumstances under which the existence 
of the relationship of employer and inde- 
pendent contractor is predictable, 19 ALR 
1168. 

Liability of employer growing out of unau- 
thorized act of employee in taking charge of 
property as accommodation, 23 ALR 131. 

Contributory negligence or assumption of 
risk in disobeying rules or directions of 
master under counter directions by superior, 
23 ALR 315. 

Liability of employer as predicated on the 
ground of his being subject to a 
nondelegable duty in regard to the injured 
person, 23 ALR 984. 

Nondelegable duty of employer in respect 
of work which will in the natural course of 
events produce injury, unless certain precau- 
tions are taken, 23 ALR 1016. 

Nondelegable duty of employer with re- 
spect to work which is inherently or intrinsi- 
cally dangerous, 23 ALR 1084. 

Independent contractor: remedial rights 
in respect of injuries caused by breaches of 
positive duties correlative to corporate fran- 
chises, 28 ALR 122. 



Liability of employer for injuries inflicted 
by automobile while being driven by or for 
salesman or collector, 29 ALR 470; 54 ALR 
627; 107 ALR 419. 

Liability of employer for acts or omissions 
of independent contractor in respect of pos- 
itive duties or former arising from or inci- 
dental to contractual relationships, 29 ALR 
736. 

Independent contractor: liability of em- 
ployer as predicated on the ground of his 
personal fault, 30 ALR 1502. 

Judgment for or against master in action 
for servant's tort as bar to action against 
servant, 31 ALR 194. 

Independent contractor: extent of the em- 
ployer's liability after he has assumed control 
of the subject-matter of the stipulated work, 
31 ALR 1029. 

Liability of contractee and contractor in- 
ter se with respect to injuries sustained while 
the stipulated work is in course of perfor- 
mance, 44 ALR 891. 

Liability of the contractee for injuries sus- 
tained by the contractor's servants in the 
course of the stipulated work, 44 ALR 932. 

Owner's liability for injury by automobile 
while being used by a servant for his own 
pleasure or business, 45 ALR 477. 

Personal liability of agent to third person 
for injuries or damages due to condition of 
principal's premises, 49 ALR 521. 

Liability of one undertaking to repair au- 
tomobile for injury to third person, 52 ALR 
857. 

Liability for injuries resulting from failure 
of independent contractor to guard opening 
in sidewalk while delivering merchandise, 
etc., 53 ALR 932. 

Salesman employed on a percentage or 
commission basis as a servant or an indepen- 
dent contractor, 61 ALR 223. 

Necessity of verdict against servant or 
agent as condition of verdict against master 
or principal for tort of servant or agent, 78 
ALR 365. 

Negligence of driver of automobile as 
imputed to members of joint enterprise, 85 
ALR 630. 



227 



51-2-4 



TORTS 



51-2-4 



Independent contractor rule as applied to 
injuries resulting from conditions created by 
independent contractors in streets, 115 ALR 
965. 

Prima facie case or presumption from 
registration of automobile in name of, or 
from proof of ownership by, defendant, as 
applicable to questions other than the 
master-servant relationship at time of acci- 
dent, 122 ALR 228. 

One soliciting subscriptions for newspa- 
per, magazine, or book, on commission basis 
as an independent contractor or employee, 
126 ALR 1120. 

Criminal responsibility of one authorized 
generally to sell intoxicating liquors for par- 
ticular illegal sale thereof by employee or 
agent, 139 ALR 306. 

Variance between allegation and proof as 
regards identity of servant or agent for 
whose acts defendant is sought to be held 
responsible, 139 ALR 1152. 

Homework by employee as affecting em- 
ployer's responsibility for injury to third 
person due to employee's negligence while 
on way to or from home, 146 ALR 1193. 

Automobile owner's common law liability 
for negligence in entrusting car to known 
incompetent, reckless, or inexperienced per- 
son as affected by statute limiting owner's 
liability to use within terms of consent, 163 
ALR 1418. 

Employer's liability for assault by truck 
driver or chauffeur, 172 ALR 532. 

Loaned servant doctrine under Federal 
Employers' Liability or Safety Appliance Act, 
1 ALR2d 302. 

Doctrine of apparent authority as applica- 
ble where relationship is that of master and 
servant, 2 ALR2d 406. 

Liability under respondeat superior doc- 
trine for acts of operator furnished with 
leased machine or motor vehicle, 17 ALR2d 
1388. 

Employer's liability for negligence of em- 
ployee in piloting his own airplane in em- 
ployer's business, 46 ALR2d 1050. 

Deviation from employment in use of em- 
ployer's car during regular hours of work, 51 
ALR2d 8; 65 ALR4th 346. 

Employee's operation of employer's vehi- 
cle outside regular working hours as within 
scope of employment, 51 ALR2d 120. 

Route driver or salesman as independent 



contractor or employee of merchandise pro- 
ducer or processor, for purposes of 
respondeat superior doctrine, 53 ALR2d 
183. 

Liability of employer for negligent opera- 
tion of motor vehicle by automobile sales- 
man, 53 ALR2d 631. 

Employer's liability for assault by taxicab 
or motorbus driver, 53 ALR2d 720. 

Liability of hospital or sanitarium for neg- 
ligence of physician or surgeon, 69 ALR2d 
305. 

Status of gasoline and oil distributor or 
dealer as agent, employee, independent con- 
tractor, or independent dealer as regards 
responsibility for injury to person or damage 
to property, 83 ALR2d 1282. 

Liability insurance of garages, motor vehi- 
cle repair shops and sales agencies, and the 
like, 93 ALR2d 1047. 

Respondeat superior: deviation from 
scope of employment in flying employer's 
airplane, 100 ALR2d 1346. 

Right of employer sued for tort of em- 
ployee to implead the latter, 5 ALR3d 871. 

Liability of corporation for torts of subsid- 
iary, 7 ALR3d 1343. 

Owning, leasing, or otherwise engaging in 
business of furnishing services for taxicabs as 
basis of tort liability for acts of taxi driver 
under respondeat superior doctrine, 8 
ALR3d 818. 

Liability of police officer or his bond for 
injuries or death of third persons resulting 
from operation of motor vehicle by subordi- 
nate, 15 ALR3d 1189. 

Master's liability for injury to or death of 
person, or damage to property, resulting 
from fire allegedly caused by servant's smok- 
ing, 20 ALR3d 893. 

Liability of one contracting for private 
police security service for acts of personnel 
supplied, 38 ALR3d 1332. 

Liability to one injured in course of con- 
struction, based upon architect's alleged fail- 
ure to carry out supervisory responsibilities, 
59 ALR3d 869. 

Liability of hospital, other than mental 
institution, for suicide of patient, 60 ALR3d 
880. 

Liability for member of unincorporated 
association for tortious acts of association's 
nonmember agent or employee, 62 ALR3d 
1165. 



228 



51-2-5 



IMPUTABLE NEGLIGENCE 



51-2-5 



When is employer chargeable with negli- 
gence in hiring careless, reckless, or incom- 
petent independent contractor, 78 ALR3d 
910. 

Vicarious liability of private franchisor, 81 
ALR3d 764. 

Patient tort liability of rest, convalescent, 
or nursing homes, 83 ALR3d 871. 

Principal's liability for punitive damages 
because of false arrest or imprisonment, or 
malicious prosecution, by agent or em- 
ployee, 93 ALR3d 826. 



Storekeepers liability for personal injury 
to customer caused by independent contrac- 
tor's negligence in performing alterations or 
repair work, 96 ALR3d 1213. 

Liability of hospital or sanitarium for neg- 
ligence of physician or surgeon, 51 ALR4th 
235. 

Modern status of rule imputing motor 
vehicle driver's negligence to passenger on 
joint venture theory, 3 ALR5th 1. 



51-2-5. Liability for negligence of contractor. 

An employer is liable for the negligence of a contractor: 

(1) When the work is wrongful in itself or, if done in the ordinary 
manner, would result in a nuisance; 

(2) If, according to the employer's previous knowledge and experi- 
ence, the work to be done is in its nature dangerous to others however 
carefully performed; 

(3) If the wrongful act is the violation of a duty imposed by express 
contract upon the employer; 

(4) If the wrongful act is the violation of a duty imposed by statute; 

(5) If the employer retains the right to direct or control the time and 
manner of executing the work or interferes and assumes control so as to 
create the relation of master and servant or so that an injury results which 
is traceable to his interference; or 

(6) If the employer ratifies the unauthorized wrong of the indepen- 
dent contractor. (Civil Code 1895, § 3819; Civil Code 1910, § 4415; Code 
1933, § 105-502.) 



History of section. — The language of this 
section is derived in part from the decision 
in Adanta 8c F.R.R. v. Kimberly, 87 Ga. 161, 
13S.E. 277 (1891). 

Cross references. — Liability of principal 
contractor or subcontractor for injuries suf- 
fered by employees engaged in working 
upon subject matter of contract, § 34-9-8. 

Law reviews. — For article surveying torts 
law, see 34 Mercer L. Rev. 271 (1982). 

For comment criticizing Dekle v. Southern 
Bell Tel. 8c Tel. Co., 208 Ga. 254, 66 S.E.2d 
218 (1951), holding defendant not liable for 
negligence of independent contractor since 



excavating public street is not inherently 
dangerous as a matter of law, see 14 Ga. BJ. 
228 (1951). For comment on Ellen berg v. 
Pinkerton's, Inc., 125 Ga. App. 648, 188 
S.E.2d 911 (1972), holding employer defen- 
dant may not use independent contractor 
defense to invasion of privacy suit resulting 
from actions of investigator working in his 
behalf, see 9 Ga, St. B.J. 519 (1973). For 
comment on Aretz v. United States, 604 F.2d 
417 (5th Cir. 1979), discussing federal gov- 
ernment's duty of care to employees of an 
independent contractor, see 31 Mercer L. 
Rev. 1095 (1980). 



229 



51-2-5 



TORTS 



51-2-5 



JUDICIAL DECISIONS 



Analysis 



General Consideration 
Applicability to Specific Cases 



General Consideration 

Applicability. — This section and § 51-2-4 
limit an employer's vicarious liability only 
and do not apply to a claim arising from the 
employer's own conduct. England v. Beers 
Constr. Co., 224 Ga. App. 44, 479 S.E.2d 420 
(1996). 

"Independent contractor" defined. — In- 
dependent contractor is person employed to 
perform work on terms that he is to be free 
from control of employer as respects the 
manner in which the details of the work are 
to be executed. Bendey v. Jones, 48 Ga. App. 
587, 173 S.E. 737 (1934). 

Employer is not liable for torts committed 
by an independent contractor, unless the 
work is in itself unlawful or attended with 
danger to others, or the wrongful act consists 
in the violation of a duty imposed by the 
employer, or is in violation of a duty imposed 
by statute, or the employer interferes and 
assumes control so as to create the relation 
of master and servant, or ratines the unau- 
thorized wrong of the independent contrac- 
tor. Massee 8c Felton Lumber Co. v. Macon 
Cooperage Co., 44 Ga. App. 590, 162 S.E. 
396 (1932). 

Where an individual or corporation con- 
tracts with another individual or corpora- 
tion, exercising an independent employ- 
ment, for the latter to do a work not in itself 
unlawful or attended with danger to others, 
such work to be done and according to the 
contractor's own methods, and not subject 
to the employer's control or orders, except 
as to results to be obtained, the employer is 
not liable for the wrongful or negligent acts 
of the contractor or the contractor's ser- 
vants. Georgia Power Co. v. Gillespie, 49 Ga. 
App. 788, 176 S.E. 786 (1934). 

A person employing another to do a lawful 
act is presumed, in the absence of evidence 
to the contrary, to have employed him to do 
it in a lawful and reasonable manner; and 
therefore, unless the parties stand in the 
relation of master and servant, the employer 
is not responsible for damages occasioned by 
the negligent mode in which the work is 



done. Georgia Power Co. v. Gillespie, 49 Ga. 
App. 788, 176 S.E. 786 (1934). 

Absent an express contractual duty, a gen- 
eral contractor cannot be held liable for 
damage caused by the collateral torts of 
independent contractors. Faubion v. Pied- 
mont Eng'g 8c Constr. Corp., 178 Ga. App. 
256, 342 S.E.2d 718 (1986). 

Where a nonprofit corporation which en- 
courages industrial and business develop- 
ment retained the right to approve a soils 
testing firm and to direct a general contrac- 
tor when to begin construction, the retained 
rights did not constitute such control as to 
render the corporation liable. Toys 'R' Us, 
Inc. v. Atlanta Economic Dev. Corp., 195 Ga. 
App. 195, 393 S.E.2d 44 (1990). 

Liability where contractor employed to 
serve third party. — One who employs an 
independent contractor to perform services 
for another which are accepted in the rea- 
sonable belief that the services are being 
rendered by the employer or by his servants, 
is subject to liability for physical harm 
caused by the negligence of the contractor 
in supplying such services, to the same ex- 
tent as though the employer were supplying 
them himself or by his servants. Stewart v. 
Midani, 525 F. Supp. 843 (N.D. Ga. 1981). 

Principal may employ an agent and permit 
employment by him of subagents or servants 
to aid him in carrying on the business, 
without becoming liable for the acts of the 
subagents or servants. Sinclair Ref. Co. v. 
Veal, 51 Ga. App. 755, 181 S.E. 705 (1935). 

Employer of independent contractor may 
be liable to employees of independent con- 
tractor for his own wrongful acts. Aretz v. 
United States, 604 F.2d 417 (5th Cir. 1979). 

Employer is not bound to supervise 
progress of contract work for purpose of 
preventing commission of collateral tort by 
independent contractor. — The employer 
has the right to presume that the indepen- 
dent contractor will do the work in a pru- 
dent and proper manner. Dekle v. Southern 
Bell Tel.& Tel. Co., 208 Ga. 254, 66 S.E.2d 
218 (1951). 

Employer has right to rely on presumption 
that contractor will discharge his legal duties 



230 



51-2-5 



IMPUTABLE NEGLIGENCE 



51-2-5 



owing to his employees and third persons. 

Georgia Power Co. v. Gillespie, 49 Ga. App. 
788, 176 S.E. 786 (1934). 

Employer's liability for contractor's torts 
limited by statute. — Georgia law imposes 
liability on an employer for the torts of an 
independent contractor only when a duty 
imposed by statute, and not under common 
law, has been violated. Uniroyal, Inc. v. 
Hood, 588 F.2d 454 (5th Cir. 1979). 

The exceptions to the rule that only the 
master of a servant could be held liable for 
his negligence are set forth in this section 
where it is provided that in certain cases the 
employer of a contractor may be held liable 
for the negligence of the contractor, or his 
employees. Peabody Mfg. Co. v. Smith, 94 
Ga. App. 240, 94 S.E.2d 156 (1956). 

The general rule, absent any of the excep- 
tions embodied in this section, is that an 
employer of an independent contractor is 
not liable for the contractor's negligence. 
McEntyre v. Clack, 104 Ga. App. 646, 122 
S.E.2d595 (1961). 

The rule in employer-independent con- 
tractor situations is one of no liability on the 
part of the employer, unless some of the 
rule's recognized exceptions as set out in 
this section are met. Moore v. J.C. Penney 
Co., 107 Ga. App. 254, 129 S.E.2d 538 
(1963). 

Exceptions not exclusive. — This section 
does not represent an exclusive list of excep- 
tions to the limitation of liability contained 
in § 51-2-4. Peachtree-Cain Co. v. McBee, 
254 Ga. 91, 327 S.E.2d 188 (1985). 

Contractor's liability for subcontractor. — 
The responsibility of a general contractor is 
not unlimited, but the contractor is liable for 
the negligence of the subcontractor under 
any one of the alternative circumstances set 
forth in this section. Harrison & Ellis, Inc. v. 
Nashville Milling Co., 156 Ga. App. 697, 275 
S.E.2d 374 (1980). 

Liability of independent contractor gener- 
ally. — One who carries on an independent 
business and who contracts with another to 
perform services for him, being answerable 
only for the result and not being under the 
control of his employer as to the time, 
manner, or method of doing the work, is an 
independent contractor for whose torts the 
other contracting party is not liable except 
in a few stated exceptions, such as those 
involving a nondelegable duty ensuing from 



work which according to previous knowl- 
edge and experience is by its nature danger- 
ous to others, however carefully performed. 
St. Paul Cos. v. Capitol Office Supply Co., 
158 Ga. App. 748, 282 S.E.2d 205 (1981). 

Test to determine status as independent 
contractor. — The test to be applied in 
determining the relationship of the parties 
under the contract lies in whether the con- 
tract gives, or the employer assumes, the 
right to control the time and manner of 
executing the work, as distinguished from 
the right merely to require results in confor- 
mity to the contract. Massee 8c Felton Lum- 
ber Co. v. Macon Cooperage Co., 44 Ga. 
App. 590, 162 S.E. 396 (1932); Yearwood v. 
Peabody, 45 Ga. App. 451, 164 S.E. 901 
(1932); Cooper v. Dixie Constr. Co., 45 Ga. 
App. 420, 165 S.E. 152 (1932); Bentley v. 
Jones, 48 Ga. App. 587, 173 S.E. 737 (1934); 
Whitehall Chevrolet Co. v. Anderson, 53 Ga. 
App. 406, 186 S.E. 135 (1936); Fidelity & 
Cas. Co. v. Clements, 53 Ga. App. 622, 186 
S.E. 764 (1936); De Bord v. Procter 8c Gam- 
ble Distrib. Co., 58 F. Supp. 157 (N.D. Ga. 
1943), aff'd, 146 F.2d 54 (5th Cir. 1944); 
Morris v. Constitution Publishing Co., 84 Ga. 
App. 816, 67 S.E.2d 407 (1951); Federated 
Mut. Implement 8c Hdwe. Ins. Co. v. Elliott, 
88 Ga. App. 266, 76 S.E.2d 568 (1953); Weiss 
v. Kling, 96 Ga. App. 618, 101 S.E.2d 178 
(1957); Greenbaum v. Brooks, 110 Ga. App. 
661, 139 S.E.2d 432 (1964); Savannah Elec. 
8c Power Co. v. Edenfield, 118 Ga. App. 531, 
164 S.E.2d 366 (1968); Hotel Storage, Inc. v. 
Fesler, 120 Ga. App. 672, 172 S.E.2d 174 
(1969); Smith v. Poteet, 127 Ga. App. 735, 
195 S.E.2d 213 (1972); Farmers Mut. Exch. 
of Commerce, Inc. v. Sisk, 131 Ga. App. 206, 
205 S.E.2d 438 (1974); Warner v. Arnold, 
133 Ga. App. 174, 210 S.E.2d 350 (1974); 
Buchanan v. Canada Dry Corp., 138 Ga. 
App. 588, 226 S.E.2d 613 (1976); Jones v. 
International Inventors, Inc. E., 429 F. Supp. 
119 (N.D. Ga. 1976); Hodges v. Doctors 
Hosp., 141 Ga. App. 649, 234 S.E.2d 116 
(1977); Sloan v. Hobbs Sporting Goods 
Shop, 145 Ga. App. 255, 243 S.E.2d 673 
(1978); Walton v. United States, 484 F. Supp. 
568 (S.D. Ga. 1980); Dennis v. Malt, 196 Ga. 
App. 263, 395 S.E.2d 894 (1990). 

One who caused work to be done is liable 
for the acts of employees of an independent 
contractor, where the resulting injury, in- 
stead of being collateral and flowing from 



231 



51-2-5 



TORTS 



51-2-5 



General Consideration (Cont'd) 

the negligent act of the employee alone, is 
one that might have been anticipated as a 
direct or probable consequence of the per- 
formance of the work if reasonable case was 
omitted in the course of the performance. 
Georgia Power Co. v. Gillespie, 49 Ga. App. 
788, 176 S.E. 786 (1934). 

Where one contracts with an individual 
exercising an independent employment, for 
him to do a work not in itself unlawful or 
attended with danger to others, such work to 
be done according to the contractor's own 
methods, and not subject to the employer's 
control or orders, except as to results to be 
obtained, the employer is not liable for the 
wrongful or negligent acts of such indepen- 
dent contractor or his servants. This rule is 
applicable under the provisions of the Work- 
men's Compensation Act. Bendey v. Jones, 
48 Ga. App. 587, 173 S.E. 737 (1934). 

Undoubtedly one cannot shield himself 
under the doctrine of independent contrac- 
tors by simply employing another person, 
and giving him a general authority to pro- 
cure others to assist in work which requires 
no care or skill or experience, but which is 
merely such as might be done by any person 
with sufficient physical strength. Swift &: Co. 
v. Alston, 48 Ga. App. 649, 173 S.E. 741 
(1934). 

If the act or negligence which produces 
the injury is purely collateral to the work 
contracted to be done, and is entirely the 
result of the wrongful acts of the contractor 
or his workmen, the rule is that the em- 
ployer is not liable. Georgia Power Co. v. 
Gillespie, 49 Ga. App. 788, 176 S.E. 786 
(1934). 

Controlling question is not whether em- 
ployer actually did assume control of man- 
ner of doing work, but whether he had right 
to do so under contract. Bentley v. Jones, 48 
Ga. App. 587, 173 S.E. 737 (1934); Savannah 
Elec. & Power Co. v. Edenfield, 1 18 Ga. App. 
531, 164 S.E.2d 366 (1968); Hodges v. Doc- 
tors Hosp., 141 Ga. App. 649, 234 S.E.2d 116 
(1977). 

The fact that a contractor employs, con- 
trols, and assumes entire charge over his 
workmen and that the employer neither has 
nor exercises any control, has, by many 
courts, including the courts of this state, 
been held practically decisive of the question 



of the independence of the contract. Bendey 
v. Jones, 48 Ga. App. 587, 173 S.E. 737 
(1934). 

The main consideration in the definition 
of master and servant is the right of the 
employer to control the activities of the 
employee in the employment duties. Griffin 
v. Hardware Mut. Ins. Co., 93 Ga. App. 801, 
92S.E.2d87l (1956). 

Specialization alone is not infallible test in 
determining whether one is servant or inde- 
pendent contractor. Federated Mut. Imple- 
ment 8c Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 
266, 76 S.E.2d 568 (1953). 

An employer is not liable where nuisance 
was created, where right to inspect work 
before acceptance was provided for. Louis- 
ville 8c N.R.R. v. Hughes, 134 Ga. 75, 67 S.E. 
542 (1910). 

Test under paragraph (1 ) of this section is 
would a nuisance result if work is done in the 
ordinary manner. Test is not would a nui- 
sance result if the work is done in a careless 
and negligent manner. The nonliability of 
the employer would be abrogated if the law 
were to place an absolute duty on the em- 
ployer to guard against injuries which might 
result from the negligence of the indepen- 
dent contractor in the performance of the 
stipulated work. Dekle v. Southern Bell Tel. 
8c Tel. Co., 208 Ga. 254, 66 S.E.2d 218 
(1951), overruled on other grounds, 
Peachtree-Cain Co. v. McBee, 254 Ga. 91, 
327S.E.2d 188 (1985). 

Paragraph (2) of this section holds em- 
ployer liable only when work to be done is 
inherently dangerous however carefully 
done, not merely because of the absence of 
proper care. Pressley v. Wilson, 116 Ga. App. 
206, 156 S.E.2d 399 (1967). 

Where the work done is inherendy dan- 
gerous, or involves peculiar risk of bodily 
harm to others unless special precautions 
are taken, this duty is nondelegable and the 
employer is liable for negligence of the 
contractor which produces a result falling 
short of what it was the employer's duty to 
attain. Community Gas Co. v. Williams, 87 
Ga. App. 68, 73 S.E.2d 119 (1952). 

Where the employer of an independent 
contractor procures the latter to perform an 
act which, according to previous knowledge 
and experience, is in its nature dangerous to 
others, however carefully performed, the 
negligence of the independent contractor 



232 



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51-2-5 



proximately resulting in the injuries and 
occurring in the course of the prosecution 
of the execution of the act which he was 
employed to perform is imputable to the 
contractor; the duty on the part of such 
contractor to exercise ordinary care to pre- 
vent injury to others is nondelegable where 
according to previous knowledge and expe- 
rience the work to be done is in its nature 
dangerous to others however carefully per- 
formed. Community Gas Co. v. Williams, 87 
Ga. App. 68, 73 S.E.2d 119 (1952). 

A proprietor, landlord, owner, employer 
or contractor, in dealing with an indepen- 
dent contractor or subcontractor, has cer- 
tain duties relating to the exercise of reason- 
able care in work which from his knowledge 
and experience is known to be intrinsically 
dangerous, which duties are nondelegable. 
Community Gas Co. v. Williams, 87 Ga. App. 
68, 73 S.E.2d 119 (1952); Georgia Indus. 
Realty Co. v. Maddox, 91 Ga. App. 565, 86 
S.E.2d628 (1955). 

One who employs an independent con- 
tractor to do work which the employer 
should recognize as likely to create, during 
its progress, a peculiar unreasonable risk of 
physical harm to others unless special pre- 
cautions are taken is subject to liability for 
physical harm caused to them by the ab- 
sence of such precautions if the employer 

(a) fails to provide in the contract that the 
contractor shall take such precautions, or 

(b) fails to exercise reasonable care to pro- 
vide in some other manner for the taking of 
such precautions. Aretz v. United States, 503 
F. Supp. 260 (S.D. Ga. 1977), aff'd, 660 F.2d 
531 (5th Cir. 1981). 

No liability where no inherent danger. — 
Where the work to be done is dangerous 
only because of the absence of proper care, 
the doctrine of nonresponsibility for the 
negligence of the independent contractor 
may apply, but if the work is dangerous in 
itself unless reasonable care is taken to ren- 
der it harmless, this doctrine does not apply. 
Community Gas Co. v. Williams, 87 Ga. App. 
68, 73S.E.2d 119 (1952). 

Where the work is not inherendy danger- 
ous except as a result of the negligence of 
the contractor, the employer is not liable. 
Mason v. Gracey, 189 Ga. App. 150, 375 
S.E.2d283 (1988). 

Work is not "dangerous to others however 
carefully performed" if danger results from 



doing work in unsafe manner and there is 
safe way of doing work. Hodge v. United 
States, 310 F. Supp. 1090 (M.D. Ga. 1969), 
aff'd, 424 F.2d 545 (5th Cir. 1970); Horn v. 
C.L. Osborn Contracting Co., 591 F.2d 318 
(5th Cir. 1979). 

Where it is undisputed that there are 
several safe ways of doing the work, it is not 
inherendy dangerous, and is not "in its 
nature dangerous to others, however care- 
fully performed" within the meaning of this 
section, so as to charge an employer with the 
duty of providing a subcontractor's em- 
ployee a safe place to work. Horn v. C.L. 
Osborn Contracting Co., 591 F.2d 318 (5th 
Cir. 1979). 

Past knowledge and experience is gauge 
by which to measure dangerous nature of 
work to be done. Dekle v. Southern Bell Tel. 
& Tel. Co., 208 Ga. 254, 66 S.E.2d 218 
(1951), overruled on other grounds, 
Peachtree-Cain Co. v. McBee, 254 Ga. 91, 
327S.E.2d 188 (1985). 

Purpose of inherently dangerous work 
doctrine is to allow a plaintiff to bring em- 
ployer in as another defendant, not to take 
the independent contractor out of the case 
by relieving it of various liability. Berry v. 
Cordell, 120 Ga. App. 844, 172 S.E.2d 848 
(1969). 

Paragraph (3) of this section renders em- 
ployer liable for negligence of contractor 
when wrongful act is violation of duty im- 
posed by express contract upon the em- 
ployer. However, unless the parties stand in 
the relation of master and servant, the em- 
ployer is not responsible for the damages 
occasioned by the negligent mode in which 
work is done. Fields v. B & B Pipeline Co., 
147 Ga. App. 875, 250 S.E.2d 582 (1978); 
PYA/Monarch, Inc. v. Higley, 219 Ga. App. 
199, 464S.E.2d630 (1995). 

Where a contract between an employer 
and an independent contractor incorporates 
federal safety regulations promulgated un- 
der the Occupational Safety and Health Act 
(29 U.S.C. § 651 et seq.), the employer is 
liable under paragraph (3) of this section for 
any violation of such regulations proximately 
causing an injury to an employee of the 
independent contractor. Horn v. C.L. 
Osborn Contracting Co., 591 F.2d 318 (5th 
Cir. 1979). 

Paragraph (3) of this section allows in- 
jured individual to ground his argument on 



233 



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General Consideration (Cont'd) 

contract provision contained in a contract 
between the owner and the general contrac- 
tor even where the actual breach of the 
provision is caused by the subcontractor not 
a party to the contract. Horn v. C.L. Osborn 
Contracting Co., 591 F.2d 318 (5th Cir. 
1979). 

Legal duty owed to all not sufficient. — It 
is not sufficient, in order to bring case within 
exception set forth in paragraph (3) to 
merely allege facts which show violation of 
legal duty common to all people. Rodgers v. 
Styles, 100 Ga. App. 124, 110 S.E.2d 582 
(1959). 

One charged by law with performance of 
absolute duties cannot, by delegating perfor- 
mance to independent contractor, escape 
liability for nonperformance. Southern Ry. v. 
Brooks, 112 Ga. App. 324, 145 S.E.2d 76 
(1965). 

In determining whether person is inde- 
pendent contractor or employee, courts 
have applied standard laid down in para- 
graph (5) of this section. Griffin v. Hardware 
Mut. Ins. Co., 93 Ga. App. 801, 92 S.E.2d 871 
(1956). 

Employer liable under paragraph (5) of 
this section where he interferes with or 
assumes control of contractor. — This sec- 
tion provides for liability of the employer of 
an independent contractor for the negli- 
gence of the contractor, and apparently for 
his own negligence also, if the employer 
interferes and assumes control so that an 
injury results which is traceable to his inter- 
ference. Hodge v. United States, 310 F. Supp. 
1090 (M.D. Ga. 1969), aff'd, 424 F.2d 545 
(5th Cir. 1970). 

An owner does not assume control of the 
work where the contract stipulates that the 
work is subject to the supervision of an 
architect. Lamp ton v. Cedartown Co., 6 Ga. 
App. 147, 64 S.E. 495 (1909); Malin v. City 
Council, 29 Ga. App. 393, 115 S.E. 504 
(1923). 

Terms of this section require both inter- 
ference with and assumption of control of 
some aspect of operation to which injury is 
traceable. The interference and assumption 
of control need not be of a degree great 
enough to create the relation of master and 
servant so long as the injury is traceable to 
the interference. Hodge v. United States, 



310 F. Supp. 1090 (M.D. Ga. 1969), aff'd, 
424 F.2d 545 (5th Cir. 1970). 

Employees right to control inferred in 
certain cases. — Where one is employed 
generally to perform certain services for 
another, and there is no specific contract to 
do a certain piece of work according to 
specifications for a stipulated sum, it is infer- 
able that the employer has retained the right 
to control the manner, method, and means 
of the performance of the contract, and that 
the employee is not an independent contrac- 
tor. Swift & Co. v. Alston, 48 Ga. App. 649, 
173 S.E. 741 (1934). 

The ground upon which some decisions 
may have been said to have proceeded was 
that, in view of the humble industrial status 
of the person employed and the simple 
charter of the work to be done, the only 
admissible inference was that the employers 
intended to retain the right to give direction 
in regard to details of the work. Swift 8c Co. 
v. Alston, 48 Ga. App. 649, 173 S.E. 741 
(1934). 

Independent status also inferable. — If 
there is a specific contract to do a certain 
piece of work according to specifications for 
a stipulated sum, it is inferable that the 
employer has not retained the right to con- 
trol the manner, method, and means of the 
performance of the contract, and that the 
employee is an independent contractor. 
Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 
213 (1972). 

Limited control by employer not interfer- 
ence. — The act of the employer in identi- 
fying the work, or pointing out to the con- 
tractor where the work is to be performed, is 
not an interference with, or direction of or 
control of, the manner of the work's execu- 
tion. Edmondson v. Town of Morven, 41 Ga. 
App. 209, 152 S.E. 280 (1930); Community 
Gas Co. v. Williams, 87 Ga. App. 68, 73 
S.E.2d 119 (1952); DeLoach v. Thelen, 233 
Ga. 350, 211 S.E.2d 304 (1974). 

Where a corporation contracts with an- 
other to do work under a contract whereby 
the work is to be done according to the 
contractor's own methods, and not subject 
to the employers' control or orders except as 
to the results to be obtained, the employer is 
not liable for the wrongful or negligent acts 
of such independent contractor or of his 
servants, and the mere fact that the em- 
ployer may have had an agent to supervise 



234 



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51-2-5 



the work for the purpose of seeing that it was 
done in accordance with the contract, with- 
out interfering with the methods or means 
of executing the work, would not amount to 
such control or direction of the work as 
would render the employer responsible. 
Mount v. Southern Ry., 42 Ga. App. 546, 156 
S.E. 701 (1931). 

The right of the employer to exercise a 
certain control over the work, where the 
control reserved does not apply to the man- 
ner of doing the details of the work, and 
does not thereby take the work out of the 
hands of the contractor, but goes merely to a 
general supervision to ensure that the ends 
prescribed by the contract shall be substan- 
tially met, does not destroy the indepen- 
dence of the relation. Bentley v. Jones, 48 
Ga. App. 587, 173 S.E. 737 (1934). 

There is in all agreements to do specific 
work for another the necessary and implied 
power in the person for whom the work is to 
be done to supervise the work, to see that 
the desired results are attained, and to reject 
all products that do not come up to specifi- 
cations, but this control would not charge 
the relation of employer and independent 
contractor into that of master and servant. 
Bendey v. Jones, 48 Ga. App. 587, 173 S.E. 
737 (1934). 

If relationship of employer and indepen- 
dent contractor is established, merely taking 
steps to see that the contractor carries out 
his agreement, by supervision of the inter- 
mediate results obtained, or reserving the 
right of dismissal on grounds of incompe- 
tence, is not such interference and assump- 
tion of control as will render the employer 
liable for the torts of the contractor. Ameri- 
can Sec. Life Ins. Co. v. Gray, 89 Ga. App. 
672, 80 S.E.2d 832 (1954). 

Where there exists only the right under 
the contract to superintend the work to the 
end that the desired results contracted for 
are obtained and there is no right nor 
assumption of the right to control the man- 
ner in which it is done the relationship is 
that of an independent contractor. Helms v. 
Young, 130 Ga. App. 344, 203 S.E.2d 253 
(1973). 

A contract that gave the building owner 
the right to ensure that the general contrac- 
tor's work conformed to the contract draw- 
ings and specifications and the general right 
to order the work stopped or resumed, in- 



spect its progress, or prescribe alterations 
and deviations, and also allowed the owner 
to dismiss any person who was unfit or 
unskilled and restricted the contractor's 
right to terminate the job-site supervisor 
without the owner's consent did not give the 
owner control over the work of the general 
contractor or subcontractors. Kraft Gen. 
Foods, Inc. v.-Maxwell, 219 Ga. App. 211, 464 
S.E.2d639 (1995). 

Where injury results directly from acts 
which contractor agrees to and is authorized 
to do, person who employs contractor is 
equally liable to the injured party. Georgia 
Power Co. v. Gillespie, 49 Ga. App. 788, 176 
S.E. 786 (1934). 

It is true that ordinarily the principal or 
employer is not liable for the negligence of 
an independent contractor but the rule is 
entirely different where the principal em- 
ploys an independent contractor to perform 
a job which is itself wrongful or ratifies the 
unauthorized wrong of the independent 
contractor. Azar v. GMAC, 134 Ga. App. 176, 
213S.E.2d500 (1975). 

Ordinarily, in order to ratify act, one must 
have knowledge of act. Southern Mills, Inc. 
v. Newton, 91 Ga. App. 738, 87 S.E.2d 109 
(1955). 

Mere completion not ratification. — Mere 
proof of the completion of the job, without 
any other facts in evidence, will not amount 
to a ratification. Hickman v. Toole, 31 Ga. 
App. 230, 120 S.E. 438 (1923). 

Ratification of wrongful act may result 
from acceptance of work on the theory that 
acceptance shifts the responsibility for main- 
taining the work in its defective condition to 
the employer. Southern Mills, Inc. v. 
Newton, 91 Ga. App. 738, 87 S.E.2d 109 
(1955); Wilmock, Inc. v. French, 185 Ga. 
App. 259, 363 S.E.2d 789, cert, denied, 185 
Ga. App. 911, 363 S.E.2d 789 (1987); Jenkins 
v. Georgia Power Co., 849 F.2d 507 (11th Cir. 
1988), cert, denied, 488 U.S. 1007, 109 S. Ct. 
789, 102 L.Ed. 2d 780 (1989). 

Acceptance of benefits will not ratify inde- 
pendent collateral tort committed in procur- 
ing the benefit, as the ratification must be, 
not of the contract, but of the unauthorized 
wrong. Southern Mills, Inc. v. Newton, 91 
Ga. App. 738, 87 S.E.2d 109 (1955). 

Issues of fact over ratification. — Trial 
court erred in granting summary judgment 
where issues of fact existed over company's 



235 



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TORTS 



51-2-5 



General Consideration (Cont'd) 

and general contractor's knowledge of the 
condition left by independent contractor 
and over their acceptance of that condition. 
Considering their duty to maintain or leave 
the premises in a safe condition for invitees, 
along with the fact that the defective condi- 
tion was allowed to exist for nine months, it 
could be argued that the evidence left litde 
room for concluding anything other than a 
ratification of the independent contractor's 
work. Bodenheimer v. Southern Bell Tel. & 
Tel. Co., 209 Ga. App. 248, 433 S.E.2d 75 
(1993). 

Contractor discharged by acceptance of 
work. — An independent contractor is not 
liable for injuries to a third person, occur- 
ring after the owner has accepted the work, 
though the injury results from the contrac- 
tor's failure to properly carry out his con- 
tract. Young v. Smith 8c Kelly Co., 124 Ga. 
475, 52 S.E. 765, 110 Am. St. R. 186, 4 Ann. 
Cas. 226 (1905). 

If the work performed by the contractor is 
not shown to come within one of the excep- 
tions to the general rule, when the work is 
finished by him and accepted by his em- 
ployer, the liability of the former generally 
ceases and the employer becomes answer- 
able for damages which may thereafter ac- 
crue from the defective conditions of the 
work. Derryberry v. Robinson, 154 Ga. App. 
694, 269 S.E.2d525 (1980). 

The general rule is that the contractor is 
not liable to third persons for damages or 
injuries subsequently suffered by reason of 
the condition of the work, even though he 
was negligent in carrying out the contract, at 
least, if the defect is not hidden but readily 
observable on reasonable inspection. 
Derryberry v. Robinson, 154 Ga. App. 694, 
269S.E.2d525 (1980). 

Apparent agency. — Although a hospital 
may contract with emergency room physi- 
cians, characterizing them as independent 
contractors, if the hospital cloaks them with 
the vestments of agents and patients rely 
upon such apparent agency, the physicians 
may be held liable as employees. Stewart v. 
Midani, 525 F. Supp. 843 (N.D. Ga. 1981). 

Providing auto and worker's compensa- 
tion insurance and complying with safety 
rules insufficient to impose liability. — 
Where the employer has no contract right to 



and had not assumed control of the time, 
the manner and the method of performance 
of the employee, a requirement that the 
employer purchase auto insurance and 
worker's compensation and comply with 
safety rules and regulations for the benefit of 
the employee did not bring the employer 
within the doctrine of respondeat superior. 
Slater v. Canal Wood Corp., 178 Ga. App. 
877, 345 S.E.2d 71 (1986). 

Proof of independent contractor status. 
— Where there is uncontradicted testimony 
that the employer did or did not have the 
right to any control over the manner of 
doing the details of the work to be per- 
formed, such testimony prevails against any 
antagonistic evidence that may be intro- 
duced. Bentley v. Jones, 48 Ga. App. 587, 173 
S.E. 737 (1934). 

Jury instructions. — The trial court erred 
in charging the jury in the following lan- 
guage: "I charge you members of the jury, 
that a general contractor is responsible for 
whatever his subcontractor might do." 
Harrison 8c Ellis, Inc. v. Nashville Milling 
Co., 156 Ga. App. 697, 275 S.E.2d 374 
(1980). 

Control presents jury question. — It is a 
question for the jury to determine whether, 
under this section, the defendant retained, 
or interfered and assumed control of the 
work. Quinan v. Standard Fuel Supply Co., 
25 Ga. App. 47, 102 S.E. 543 (1920). ' 

Cited in Louisville 8c N.R.R. v. Hughes, 
143 Ga. 206, 84 S.E. 451 (1915); Interna- 
tional Agric. Corp. v. Suber, 24 Ga. App. 445, 
101 S.E. 300 (1919); Buffalo Forge Co. v. 
Southern Ry., 43 Ga. App. 445, 159 S.E. 301 
(1931); De Bord v. Procter 8c Gamble 
Distrib. Co., 58 F. Supp. 157 (N.D. Ga. 1943); 
Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 
549, 43 S.E.2d 784 (1947); Southern Mills, 
Inc. v. Newton, 91 Ga. App. 738, 87 S.E.2d 
109 (1955); City of Villa Rica v. Couch, 281 
E2d 284 (5th Cir. 1960); Newsome v. Dunn, 
103 Ga. App. 656, 120 S.E.2d 205 (1961); 
Webb v. Wright, 103 Ga. App. 776, 120 S.E.2d 
806 (1961); Noxon Rug Mills, Inc. v. Smith, 
220 Ga. 291,. 138 S.E.2d 569 (1964); 
Brunswick Pulp & Paper Co. v. Dowling, 111 
Ga. App. 123, 140 S.E.2d 912 (1965); 
Townsend 8c Ghegan Enters, v. W.R. Bean 8c 
Son, 117 Ga. App. 109, 159 S.E.2d 776 
(1968); Millard v. AAA Electrical Contractors 
8c Eng'rs, 119 Ga. App. 548, 167 S.E.2d 679 



236 



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IMPUTABLE NEGLIGENCE 



51-2-5 



(1969); Scarboro Enters., Inc. v. Hirsh, 119 
Ga. App. 866, 169 S.E.2d 182 (1969); 
Herndon v. Aultman-Beasley, Inc., 127 Ga. 
App. 743, 195 S.E.2d 250 (1972); Neda 
Constr. Co. v. Jenkins, 137 Ga. App. 344, 223 
S.E.2d 732 (1976); Allen v. Cooper, 145 Ga. 
App. 555, 244 S.E.2d 98 (1978); Blackwell v. 
Taylor, 497 F. Supp. 351 (M.D. Ga. 1980); 
Johnson v. Fowler Elec. Co., 157 Ga. App. 
319, 277 S.E.2d 312 (1981); Poppell v. Geor- 
gia Power Co., 157 Ga. App. 488, 277 S.E.2d 
777 (1981); United States v. Aretz, 248 Ga. 
19, 280 S.E.2d 345 (1981); American 
Cyanamid Co. v. Ring, 158 Ga. App. 525, 281 
S.E.2d 247 (1981); Paul v. Jones, 160 Ga. 
App. 671, 288 S.E.2d 13 (1981); McGuire v. 
Ford Motor Credit Co., 162 Ga. App. 312, 
290 S.E.2d 487 (1982); Financial Bldg. Con- 
sultants, Inc. v. Guillebeau, Britt & Waldrop, 
163 Ga. App. 607, 295 S.E.2d 355 (1982); 
Brewer v. Williams, 167 Ga. App. 151, 305 
S.E.2d 891 (1983); Deitrich v. Trust Co. 
Bank, 179 Ga. App. 330, 346 S.E.2d 107 
(1986); Caruso v. Aetna Cas. & Sur. Co., 181 
Ga. App. 829, 354 S.E.2d 18 (1987); Spell v. 
Port City Adhesives, Inc., 183 Ga. App. 816, 
360 S.E.2d 63 (1987); Jenkins v. Georgia 
Power Co., 668 F. Supp. 1574 (N.D. Ga. 
1987); Bellsouth Telecommunications, Inc. 
v. Helton, 215 Ga. App. 435, 451 S.E.2d 76 
(1994); Rice v. Delta Air Lines, 217 Ga. App. 
452, 458 S.E.2d 359 (1995); Owens v. 
Barclays American /Mortgage Corp., 218 Ga. 
App. 160, 460 S.E.2d 835 (1995); Finley v. 
Lehman, 218 Ga. App. 789, 463 S.E.2d 709 
(1995); Stanley v. Fiber Transp., Inc., 221 Ga. 
App. 171, 470 S.E.2d 767 (1996); Lane v. 
Montgomery Elevator Co., 225 Ga. App. 523, 
484 S.E.2d 249 (1997); Allen v. King Plow 
Co., 227 Ga. App. 795, 490 S.E.2d 457 
(1997); Bell S. Telecommunications, Inc. v. 
Widner, 229 Ga. App. 634, 495 S.E.2d 52 
(1998); Johnson v. Kimberly Clark, 233 Ga. 
App. 508, 504 S.E.2d 536 (1998). 

Applicability to Specific Cases 

Automobiles. — It is nowhere held that 
the negligence of a driver is ipso facto 
imputable to the owner simply because he 
may be a passenger at the time of the 
collision. At most there is only a presump- 
tion, or inference, in the absence of evi- 
dence to the contrary, that the owner has the 
right to control the driver as his agent or 
servant and is therefore liable for the driv- 



er's negligence under the doctrine of 
respondeat superior, or is therefore charge- 
able with his negligence in the owner's ac- 
tion against a third party. Floyd v. Colonial 
Stores, Inc., 121 Ga. App. 852, 176 S.E.2d 
111 (1970). 

When uncontradicted and unimpeached 
evidence is produced as to the real facts, the 
inference that the owner of a car controls 
the driver simply because the owner is a 
passenger in the car disappears and does not 
create a conflict in the evidence so as to 
require its submission to a jury. Floyd v. 
Colonial Stores, Inc., 121 Ga. App. 852, 176 
S.E.2d 111 (1970). 

A joint interest with another in the object 
and purpose of an automobile trip is not 
enough to render one liable for the negli- 
gent acts of the other in the operation of the 
automobile. Floyd v. Colonial Stores, Inc., 
121 Ga. App. 852, 176 S.E.2d 111 (1970). 

Automotive repairs. — There was no evi- 
dence that car owner retained the right to 
direct or control the time and manner of 
executing the work to be done upon his 
truck, or that he interfered and assumed 
control of any part of the work, where al- 
though the evidence showed that he told 
garage owner to fix the carburetor and to 
put the truck on the street when he got 
through with it, these were instructions as to 
the end results desired, and not as to the 
means or manner of accomplishing these 
results. Strickland v. Baker, 91 Ga. App. 97, 
84S.E.2d851 (1954). 

The operation of a taxicab on public 
streets by a mechanic for the purpose of 
testing it in connection with maintenance 
required by a municipal ordinance was not a 
violation of any duty of the owner-operator 
arising from public ordinances, such as 
would subject him to liability for injuries 
caused by the wrongful act of the mechanic, 
under the provisions of this section. Pressley 
v. Wilson, 116 Ga. App. 226, 156 S.E.2d 398 
(1967). 

Automobile repossession. — An automo- 
bile repossession business and its owner were 
not liable for injuries arising from the repos- 
session of a van by an independent contrac- 
tor where there was no control over the time 
or manner of the repossession and there was 
no ratification of the wrongful act leading to 
the accident. Clayton v. Edwards, 225 Ga. 
App. 141, 483 S.E.2d 111 (1997). 



237 



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Applicability to Specific Cases (Cont'd) 

Bulldozing for property owner. — A bull- 
dozer operator was not a borrowed servant 
but more like an independent contractor, 
where although a property owner had asked 
him to do $200 worth of bulldozing for 
which the owner would pay the operator's 
employer, the operator was not subject to the 
owner's orders and control and was not 
liable to be discharged by him for miscon- 
duct or disobedience to orders. Wilson v. 
McCullough, 180 Ga. App. 579, 349 S.E.2d 
751 (1986). 

Carriers. — Where a contract was on its 
face one between brick manufacturer and 
independent contractor engaged in an inde- 
pendent and separate trucking business, the 
evidence did not authorize an inference that 
the truck driver was an agent or employee of 
the brick company, since there was no evi- 
dence to show that the company retained 
the right to direct or control the time and 
manner of executing the work or that it 
interfered and assumed control. Jocie Motor 
Lines v. Burns Brick Co., 98 Ga. App. 404, 
105 S.E.2d780 (1958). 

Construction contractors and subcontrac- 
tors. — Owner of premises is not liable 
where a contractor polluted a watercourse 
while engaged in making bricks. Sharp 8c Co. 
v. Parker, 108 Ga. 805, 34 S.E. 135 (1899). 

The owner of premises who retains con- 
trol thereof will be held liable under this 
section to the workman of a contractor, 
where the hazard is latent or concealed. 
Huey v. City of Atlanta, 8 Ga. App. 597, 70 
S.E. 71 (1911); Central of Ga. Ry. v. Lawley, 
33 Ga. App. 375, 126 S.E. 273, cert, denied, 
33 Ga. App. 828 (1925). 

Where employer was a municipal corpora- 
tion which had employed an independent 
contractor, the fact that no legally enforce- 
able contract existed between the employer 
and the contractor by reason of failure of the 
contractor to give bond for the faithful per- 
formance of the contract did not operate to 
alter the status of the relationship between 
the parties as respects the nature and char- 
acter of the work performed or the charac- 
ter and conduct of the employer with refer- 
ence to the operation of the work, and the 
city therefore was not, by reason of the 
failure of the contractor to execute the 
required bond, liable for any damage result- 



ing from negligence in the performance of 
the work. Edmondson v. Town of Morven, 41 
Ga. App. 209, 152 S.E. 280 (1930). 

Where the digging of a well, with the use 
of an engine apparatus, is in close proximity 
to an inflammable frame building, the em- 
ployer of the independent contractor is not 
liable for damages sustained as a result of the 
ignition of the building from sparks emitted 
as the result of the negligence of the defen- 
dant in operating the engine. Edmondson v. 
Town of Morven, 41 Ga. App. 209, 152 S.E. 
280 (1930). 

The digging of a well which requires the 
use of apparatus consisting of a steam engine 
in which fire is used to generate steam is not 
work which "according to previous knowl- 
edge and experience ... is in its nature 
dangerous" as an instrumentality likely to 
set fire to the neighboring buildings "how- 
ever carefully" the work is performed, 
where, by the use of an engine properly 
equipped and properly operated, the danger 
from the spread of fire from the operation of 
the engine can be eliminated. Edmondson v. 
Town of Morven, 41 Ga. App. 209, 152 S.E. 
280 (1930). 

If the owner of adjacent property merely 
hires an independent contractor to make 
excavations adjacent to the wall of his neigh- 
bor's building without providing in any way 
for safeguarding such walls, and such con- 
tractor carries out the directions of his em- 
ployer, such employer will be liable for any 
injury resulting from the work carried out in 
the manner directed by him. On the other 
hand, if the plans and specifications pro- 
vided that proper and necessary precautions 
be taken to prevent injury and such inde- 
pendent contractor failed to obey such in- 
structions, the employer would not be liable. 
Georgia Power Co. v. Gillespie, 49 Ga. App. 
788, 176 S.E. 786 (1934). 

In the construction of a tall office building 
the owner would not be liable for the failure 
of the independent contractor to erect safe 
scaffolding in the construction of such build- 
ing, although both he and the independent 
contractor knew that the failure so to do was 
necessarily dangerous to employees working 
thereon. Georgia Power Co. v. Gillespie, 49 
Ga. App. 788, 176 S.E. 786 (1934). 

Electricity is a substance so inherently 
dangerous that a power company may not 
contract for the building of power lines with 



238 



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IMPUTABLE NEGLIGENCE 



51-2-5 



an independent contractor and absolve itself 
from liability for an injury which occurs 
solely because of the negligence of such 
independent contractor in the doing of the 
work. Georgia Power Co. v. Gillespie, 49 Ga. 
App. 788, 176 S.E. 786 (1934). 

If the excavation for a building is so 
negligently done as to injure a structure on 
adjoining premises, the owner will not be 
liable provided the plans and specifications 
furnished to the contractor were sufficient 
to secure a safe construction of the building, 
and provided the erection of the building 
was not, in its nature, dangerous to adjacent 
property. Georgia Power Co. v. Gillespie, 49 
Ga. App. 788, 176 S.E. 786 (1934). 

Where an independent contractor in do- 
ing repair work for an owner causes an 
obstruction on the sidewalk or in the street 
adjoining the property being repaired, the 
owner by accepting the work done on his 
own property does not thereby assume liabil- 
ity for the failure of the independent con- 
tractor in failing to remove in a reasonable 
time such obstruction, it appearing that such 
obstruction is not connected with nor does it 
form any part of the work accepted by the 
owner on his own property. Goldman v. 
Clisby, 62 Ga. App. 516, 8 S.E.2d 701 (1940). 

Theory that the plaintiff was an invitee of 
the elevator company, employed to make 
alterations on elevator because she was an 
employee and invitee of the lessee would not 
be sustainable since if the elevator company 
had exclusive control of the elevators, the 
plaintiff as an employee of the lessee would 
not have occupied the status of invitee as to 
the elevator either as to the elevator com- 
pany or the lessee, in the absence of allega- 
tions showing an authorized invitation oth- 
erwise. Callaham v. Carlson, 85 Ga. App. 4, 
67S.E.2d726 (1951). 

The mere fact that individual was present 
and directed where propane tank was to be 
put would not make him liable for its drop- 
ping and resultant explosion as an employer 
of the independent contractor under the 
fifth exception in this section on the theory 
that he interfered and assumed control, for 
an employer has the right to supervise the 
work to the extent of seeing that the results 
are in conformity with the specifications. 
Community Gas Co. v. Williams, 87 Ga. App. 
68, 73S.E.2d 119 (1952). 

Where contractor had no initial or final 



control over the selection of subcontractors, 
so that both contractor and subcontractor 
occupied the relationship of contractors to 
the landowner, only the subcon- 
tractor-employer of the welder who caused 
the fire could be held liable for his negli- 
gence even though the contract between the 
landowner and the contractor stated that the 
contractor would have full directing author- 
ity over the execution of the contract. 
Peabody Mfg. Co. v. Smith, 94 Ga. App. 240, 
94S.E.2d 156 (1956). 

Where a prime contractor who is charged 
with constructing a bridge and a portion of a 
highway employs another company to build 
the bridge, although it may in general direct 
and supervise the work in accordance with 
the terms of its contract, the relationship 
insofar as building the bridge is concerned is 
not solely that of master and servant, and the 
subcontractor who is actually engaged in 
erecting the bridge must be considered to be 
in control of the construction to the extent 
of exercising ordinary care to avoid injuring 
others thereby; the prime contractor had a 
general duty respecting the entire project to 
warn the traveling public of dangers inci- 
dent thereto and the subcontractor also had 
a duty to avoid injuring others in the con- 
struction work actually undertaken by it. 
Holland v. Phillips, 94 Ga. App. 361, 94 
S.E.2d503 (1956). 

Where one company enters into a con- 
tract with the State Highway Department 
(now Department of Transportation) to do 
construction work on the public highways of 
this state and lets out a part of the contract 
to another company, the work to be under 
the direction and supervision of the former, 
the relation of contractor and subcontractor 
exists between the two and they may be 
jointly liable for injury resulting from negli- 
gence. Holland v. Phillips, 94 Ga. App. 361, 
94S.E.2d503 (1956). 

Where the owner of premises employs a 
general contractor to construct a dwelling 
house upon the same, and places the gen- 
eral contractor in possession and control of 
the premises, a subcontractor whom the 
general contractor employs to do certain 
work connected with the construction of the 
building is an invitee of the general contrac- 
tor to whom the latter owes the duty of 
ordinary care. Braun v. Wright, 100 Ga. App. 
295, 111 S.E.2d 100 (1959). 



239 



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TORTS 



51-2-5 



Applicability to Specific Cases (Cont'd) 

Petition for wrongful death of plaintiff's 
wife and mother, who were riding in an 
automobile that was struck by road machin- 
ery operated by subcontractor's employee, 
which alleged that the subcontractor had 
surrender to the contractor the right to 
direct and control the manner in which the 
machinery was to be operated by the subcon- 
tractor's employee, failed to state a cause of 
action against the subcontractor due to this 
lack of control. Ed Smith & Sons v. Mathis, 
217 Ga. 354, 122 S.E.2d 97 (1961). 

The cases which have construed this sec- 
tion have emphasized the word "express" 
and the necessity that as between an inde- 
pendent contractor and subcontractors, the 
contractual obligations should be placed 
upon the particular employer as opposed to 
any independent contractor since the con- 
tractual duty could be discharged in any 
effective manner, and act of a subcontractor 
in negligently damaging property would be a 
collateral tort for which the prime contrac- 
tor would not be liable because this would 
not be a violation of an express contract 
obligation falling within the exception pro- 
vided in this section. Fields v. B & B Pipeline 
Co., 147 Ga. App. 875, 250 S.E.2d 582 
(1978). 

Where an insurance company did not 
retain or exercise any right of control over 
the time, manner or method of perfor- 
mance of a repair contractor's work, the 
insurance company could not be held vicar- 
iously liable for the contractor's alleged neg- 
ligence under the doctrine of respondeat 
superior. Carter v. Allstate Ins. Co., 197 Ga. 
App. 738, 399 S.E.2d 500 (1990). 

Under Georgia law the United States owed 
contractor's employee a duty to exercise 
ordinary care in carrying out its safety re- 
sponsibilities for the construction project at 
an air force base, even though a subcontrac- 
tor created the dangerous scaffold situation. 
Phillips v. United States, 956 F.2d 1071 (11th 
Cir. 1992). 

Property owner was not liable for injuries 
sustained by subcontractor's employee 
where independent contractor alone had 
assumed the duty of providing for the safety 
of its workers. Englehart v. Oki Am., Inc., 209 
Ga. App. 151, 433 S.E.2d 331 (1993). 

Where the employer's contract mandated 



compliance with regulations of OSHA and 
safety standards of Associated General Con- 
tractors, and there was evidence that the 
employer was aware that the contractor was 
in violation of such regulations and stan- 
dards, a material issue of fact existed as to 
whether the employer ratified the conduct 
of its contractor and grant of summary judg- 
ment was error. Styles v. Mobil Oil Corp., 218 
Ga. App. 48, 459 S.E.2d 578 (1995). 

Builder-sellers have a right and a duty to 
direct and control the work of those em- 
ployed by them to the extent that an ordi- 
narily prudent builder would exercise such 
direction and control to build a fit and 
workmanlike structure. Even assuming the 
buyers, in the exercise of ordinary care, 
would not have known of the latent con- 
struction defect, the issue to be determined 
is whether such defects either were known to 
the builder-seller or in the exercise of ordi- 
nary care would have been discovered by 
him. Seely v. Loyd H. Johnson Constr. Co., 
220 Ga. App. 719, 470 S.E.2d 283 (1996). 

Where the plaintiff's car fell into a trench 
that had been dug across a public road to lay 
a telephone cable, the defendant construc- 
tion contractor could not be held liable for 
the negligence of an independent contrac- 
tor based on an implied duty to restore the 
road to its original condition after the utility 
work was completed or based on a ratifica- 
tion of the wrong of the independent con- 
tractor. Widner v. Brookins, Inc., 236 Ga. 
App. 563, 512 S.E.2d 405 (1999). 

Dismantling of elevator was not inherently 
dangerous since evidence showed that it 
could have been safely dismanded with the 
use of additional cranes and structural brac- 
ing. Brooks v. Oil-Dri Corp., 205 Ga. App. 
214, 422 S.E.2d 22, cert, denied, 205 Ga. 
App. 899, 422 S.E.2d 22 (1992). 

Eminent domain. — Whether the statute 
embodied in § 51-2-4 and this section is 
exhaustive as to exceptions to the rule of 
nonliability of an employer for the acts of an 
independent contractor, it must yield to and 
cannot control the constitutional duty im- 
posed upon a condemnor to pay compensa- 
tion for the taking or damaging of private 
property for public purposes whether or not 
such taking or damaging was done by an 
independent contractor hired by the con- 
demnor. Fulton County v. Woodside, 223 Ga. 
316, 155 S.E.2d 404 (1967); Georgia Power 



240 



51-2-5 



IMPUTABLE NEGLIGENCE 



51-2-5 



Co. v.Jones, 122 Ga. App. 614, 178 S.E.2d 
265 (1970). 

Equipment leasing. — In a suit for dam- 
ages to a crane leased to defendant corpora- 
tion's wholly owned subsidiary, complaint 
alleging that subsidiary was employed by 
defendant corporation as servant and agent 
at the time the crane was damaged was good 
against a general demurrer (now motion to 
dismiss). Condenser Serv. & Eng'r Co. v. 
Brunswick Port Auth., 87 Ga. App. 469, 74 
S.E.2d398 (1953). 

Factory. — Factory was not liable for 
independent contractor's unauthorized, un- 
supervised use of a forklift to raise defen- 
dant to a higher level for the purpose of 
repairing factory fan, resulting in employ- 
ee's falling from forklift and injuring him- 
self. Murphy v. Blue Bird Body Co., 207 Ga. 
App. 853, 429 S.E.2d 530 (1993). 

Floor cleaning service. — Even though a 
floor cleaning service was an independent 
contractor of defendant grocery store, be- 
cause the store was open for business with 
employees present during the time the ser- 
vice worked on the floor, material issues of 
fact existed as to whether the store had 
turned full possession and control of the 
floor over to the service and whether warn- 
ing signs were posted. Feggans v. Kroger Co., 
223 Ga. App. 47, 476 S.E.2d 822 (1996). 

Gas station. — A company that leased 
property and sold gas to a gas station was not 
the employer of the operator of the station 
and could not be held vicariously liable 
under this section for the operator's negli- 
gence. Wells v. Vi-Mac, Inc., 226 Ga. App. 
261, 486 S.E.2d 400 (1997). 

Materials recovery facility was responsible 
for ensuring transportation of its waste in 
compliance with regulations promulgated 
pursuant to the Georgia Comprehensive 
Solid Waste Management Act and could be 
responsible for an injury caused by a con- 
tractor's violation of the regulations. Perry v. 
Soil Remediation, Inc., 221 Ga. App. 386, 
471 S.E.2d320 (1996). 

Hazardous waste. — A manufacturer that 
hired a contractor to galvanize nails could 
not be held liable under this section for the 
contractor's negligence with respect to treat- 
ment or disposal of hazardous wastes. Briggs 
& Stratton Corp. v. Concrete Sales & Serv, 
Inc., 971 F. Supp. 566 (M.D. Ga. 1997). 

Hospitals. — A physician on the staff of a 
hospital is not automatically an employee of 



the hospital and where a physician is an 
independent contractor the hospital is not 
liable for his negligent performance of pro- 
fessional services unless it negligently se- 
lected him or undertook to direct him in the 
manner and method of treating the patient. 
Hollingsworth v. Georgia Osteopathic Hosp., 
145 Ga. App. 870, 245 S.E.2d 60, aff'd, 242 
Ga. 522, 250 S,E.2d 433 (1978). 

Where the attending physician was an 
independent contractor rather than an em- 
ployee of the hospital, and it is not alleged 
that the hospital was negligent in having him 
on its staff or that it undertook to direct him 
in his treatment of the patient, the hospital 
cannot be held liable for his alleged negli- 
gence. Moore v. Carrington, 155 Ga. App. 
12, 270S.E.2d 222 (1980). 

In a medical malpractice action, the court 
correctly charged that if the hospital were 
found to be providing professional services 
through its actual or apparent agent, the 
hospital's actions in providing those services 
should be judged by the standard of such 
profession. Doctors Hosp. v. Bonner, 195 Ga. 
App. 152, 392 S.E.2d 897 (1990). 

Insurance companies. — While contract 
between solicitor of insurance and insurance 
company indicated relationship of indepen- 
dent contractor and employer, where evi- 
dence discloses that insurance company's 
state manager, by whom he was employed 
and under whose supervision he worked, 
allotted certain territory to him, and re- 
quired regular attendance at morning staff 
meetings, and that insurance company paid 
for salesman's license, furnished him all 
literature and selling aids, required him to 
own an automobile as a condition of employ- 
ment, and that at the time of the collision 
salesman was on his way to interview a 
prospective customer whose name had been 
given him at the office, evidence authorizes 
finding that master-servant relationship ex- 
isted. American Sec. Life Ins. Co. v. Gray, 89 
Ga. App. 672, 80 S.E.2d 832 (1954). 

Newspaper delivery. — Publisher could 
not be held liable for negligent driving of 
distributor's delivery vehicle on the ground 
that driver was not licensed, since there was 
no duty on the part of the newspaper pub- 
lisher to inquire and ascertain if the distrib- 
utor was properly licensed. Tanner v. USA 
Today, 179 Ga. App. 722, 347 S.E.2d 690 
(1986). 



241 



51-2-5 



TORTS 



51-2-5 



Applicability to Specific Cases (Cont'd) 

Newspaper publisher was not vicariously 
liable to the owner of a newspaper distribu- 
tion service where the newspaper truck in- 
volved in a collision was owned, maintained, 
and insured by the distributor and the pub- 
lisher had no right to control the route used 
by the truck, the choice of driver, or the way 
in which the truck was driven. Tanner v. USA 
Today, 179 Ga. App. 722, 347 S.E.2d 690 
(1986). 

Private security agencies. — Defendant- 
employer has the right to invade the injured 
plaintiffs-employee's privacy, but only in a 
reasonable and proper manner and only in 
furtherance of its interest with regard to the 
suit for personal injuries against it. It cannot 
delegate its duty of conducting a proper 
investigation to a third party so as to insulate 
itself from suit if the third party failed to 
conduct a reasonable surveillance. That be- 
ing true, the independent contractor ratio- 
nale is not applicable in a case of this kind. 
Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 
648, 188 S.E.2d 911 (1972), later appeal, 130 
Ga. App. 254, 202 S.E.2d 701 (1973). 

Employer of a private detective agency was 
held liable to a third person for an invasion 
of privacy committed during the course of 
an investigation by the agency's personnel, 
despite the fact that the agency was em- 
ployed as an independent contractor. 
United States Shoe Corp. v. Jones, 149 Ga. 
App. 595, 255 S.E.2d 73 (1979). 

Even though hirers of an independent 
security or protective agency have generally 
been held not liable for negligent torts of 
agency personnel, where the hirer did not 
exercise control over them, hirers have been 
held liable for the intentional torts of the 
agency's personnel committed in the scope 
of the agency's employment against the hir- 
er's invitees. United States Shoe Corp. v. 
Jones, 149 Ga. App. 595, 255 S.E.2d 73 
(1979). 

Rule that a property owner is liable for the 
intentional torts of an employee of a private 
security agency hired to guard the property 
is applicable where the agency is hired by the 
manager of the property rather than by the 
owner personally. Peach tree-Cain Co. v. 
McBee, 254 Ga. 91, 327 S.E.2d 188 (1985). 

Where night watchman was hired by Con- 



tractor A, who directed watchman in all of 
his duties and activities and gave him his 
paycheck, the fact that Contractor B had 
agreed (unknown to watchman) with Con- 
tractor A to pay half of watchman's costs to 
guard Contractor B's equipment did not 
create a master-and-servant relationship be- 
tween Contractor B and watchman under 
the terms of paragraph (5) . Gilleland & Son 
v. Misener Marine Constr., Inc., 173 Ga. App. 
713, 327 S.E.2d 829 (1985). 

A landlord had vicarious liability for any 
negligent act or omission of its independent 
contractor/security guard, separate from its 
own liability under § 51-3-1. FPI Atlanta, L.P. 
v. Seaton, 240 Ga. App. 880, 524 S.E.2d 524 
(1999). 

Retail sales. — Where an oil refining 
company made a written contract with an- 
other as its agent to sell its products within a 
certain territory, and provided that agent 
should pay all necessary expenses in draying 
the company's products and equipment and 
in making sales, deliveries, and collections, 
and the company merely furnished the prod- 
ucts to be sold, notwithstanding it may have 
had rules and regulations binding upon its 
agent as to the character of the subagent and 
as to the conduct of the business for the sale 
of its product, and where a truck driver was 
employed by the agent to drive the truck 
furnished by the agent to transport, sell, and 
deliver the company's products to custom- 
ers, and was hired and paid by the agent out 
of the agent's own funds, and the agent had 
control and direction of the operation of the 
truck and gave orders and directions to the 
driver as to what to do, and had control of 
him and his activities, and control of the 
time, manner, means, and methods of the 
driver in the execution of the work, the 
truck driver, in selling the products of the 
company by delivery from the truck while in 
the performance of the work for which he 
was employed, was the servant of the agent, 
and not the servant of the company; the 
company therefore was not liable for a mis- 
take of the driver in delivering gasoline 
instead of kerosene to a purchaser. Sinclair 
Ref. Co. v. Veal, 51 Ga. App. 755, 181 S.E. 705 
(1935). 

Taxicab company. — A taxicab company 
was not liable for the negligence of its inde- 
pendent contractor driver based on the driv- 
er's violation of the statute prohibiting leav- 



242 



51-2-5 



IMPUTABLE NEGLIGENCE 



51-2-5 



ing the scene of an accident; the statutory 
duty was imposed on the driver, not on the 
company, so the exception pertaining to 
violation of a duty imposed by statute does 
not apply. Loudermilk Enters., Inc. v. Hurtig, 
214 Ga. App. 746, 449 S.E.2d 141 (1994). 
Workers' compensation. — In order for 



one to recover compensation under the 
Workers' Compensation Act, it must be 
shown that the relation of master and ser- 
vant existed between him and the person 
from whom he claims compensation. 
Bendey v. Jones, 48 Ga. App. 587, 173 S.E. 
737 (1934). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 41 Am. Jur. 2d, Indepen- 
dent Contractors, § 45 et seq. 

C.J.S. — 30 C.J.S., Employer-Employee, 
§ 230 et seq. 

ALR. — Liability for injuries resulting 
from failure of independent contractor to 
guard opening in sidewalk while delivering 
merchandise, etc., 11 ALR 571; 53 ALR 932. 

Duty of an employer with respect to the 
timbering of a mine, under the common law 
and general statutes, 15 ALR 1380. 

Nonliability of an employer in respect of 
injuries caused by the torts of an indepen- 
dent contractor, 18 ALR 801. 

General discussion of the nature of the 
relationship of employer and independent 
contractor, 19 ALR 226. 

Elements bearing direcdy upon the qual- 
ity of a contract as affecting the character of 
one as independent contractor, 20 ALR 684. 

Liability of the employer for torts of inde- 
pendent contractor as predicated on the 
ground that the injury complained of was a 
direct and necessarv result of the stipulated 
work, 21 ALR 1229.' 

Liability of employer as predicated on the 
ground of his being subject to a 
nondelegable duty in regard to the injured 
person, 23 ALR 984. 

Nondelegable duty of employer in respect 
of work which will in the natural course of 
events produce injury, unless certain precau- 
tions are taken, 23 ALR 1016. 

Nondelegable duty of employer with re- 
spect to work which is inherently or intrinsi- 
cally dangerous, 23 ALR 1084. 

Liability of municipal corporations and 
their licensees for the torts of independent 
contractors, 25 ALR 426; 52 ALR 1012. 

Independent contractor remedial rights 
in respect of injuries caused by breaches of 
positive duties correlative to corporate fran- 
chises, 28 ALR 122. 

Liability of employer for acts or omissions 



of independent contractor in respect of pos- 
itive duties or former arising from or inci- 
dental to contractual relationships, 29 ALR 
736. 

Independent contractor liability of em- 
ployer as predicated on the ground of his 
personal fault, 30 ALR 1502. 

Independent contractor extent of the em- 
ployer's liability after he has assumed control 
of the subject-matter of the stipulated work, 
31 ALR 1029. 

Liability of independent contractors for 
injuries to third persons by defects in com- 
pleted work, 41 ALR 8; 123 ALR 1197. 

Liability of contractee and contractor in- 
ter se with respect to injuries sustained while 
the stipulated work is in course of perfor- 
mance, 44 ALR 891. 

Liability of the contractee for injuries sus- 
tained by the contractor's servants in the 
course of the stipulated work, 44 ALR 932. 

Liability of one undertaking to repair au- 
tomobile for injury to third person, 52 ALR 
857. 

Independent contractor non-delegable 
duties with respect to intrinsically dangerous 
or unlawful work, 76 ALR 1257. 

Liability of company which maintains 
poles for acts or omissions of other compa- 
nies using the poles under lease or license 
rendering them unsafe to persons working 
thereon, 81 ALR 415. 

Negligence of driver of automobile as 
imputed to members of joint enterprise, 85 
ALR 630. 

Employment of independent contractor 
as affecting landlord's liability for personal 
injury to tenant or to one in like case with 
tenant, 90 ALR 50; 162 ALR 1111. 

Independent contractor rule as applied to 
injuries resulting from conditions created by 
independent contractors in streets, 115 ALR 
965. 

Owner's liability for injury by automobile 



243 



51-2-5 



TORTS 



51-2-5 



while being used for servant's own pleasure 
or business, 122 ALR 858; 51 ALR2d 8; 51 
ALR2d 120; 52 ALR2d 350. 

Homework by employee as affecting em- 
ployer's responsibility for injury to third 
person due to employee's negligence while 
on way to or from home, 146 ALR 1193. 

Loaned servant doctrine under Federal 
Employers' Liability or Safety Appliance Act, 
1 ALR2d 302. 

Negligence of building or construction 
contractor as ground of liability upon his 
part for injury or damage to third person 
occurring after completion and acceptance 
of the work, 13 ALR2d 191; 58 ALR2d 865. 

Liability of freight motor carrier possess- 
ing certificate from Interstate Commerce 
Commission and employing noncertified in- 
dependent contractor under "one-way" 
lease of latter's vehicle for negligence of 
latter's employee on return trip, 16 ALR2d 
960. 

Liability in damages for injury or death of 
window washer, 17 ALR2d 637. 

Liability under respondeat superior doc- 
trine for acts of operator furnished with 
leased machine or motor vehicle, 17 ALR2d 
1388. 

Duty of owner of premises to furnish 
independent contractor or his employee a 
safe place of work, where contract is for 
repairs, 31 ALR2d 1375. 

Independent contractor rule as applicable 
to injury or death of third person as result of 
excavation and refill work, 33 ALR2d 7. 

Independent contractor rule as applicable 
to injury or death of third person as result of 
demolition work, 33 ALR2d 89. 

Liability of employer for injury to adjoin- 
ing realty resulting from excavation work by 
independent contractor on his premises, 33 
ALR2d 111. 

Liability of lessor motor carrier for lessee's 
torts or nonperformance of franchise duties, 
34ALR2d 1121. 

Deviation from employment in use of em- 
ployer's car during regular hours of work, 51 
ALR2d 8; 51 ALR2d 120; 52 ALR2d 350. 

Route driver or salesman as independent 
contractor or employee of merchandise pro- 
ducer or processor, for purposes of 
respondeat superior doctrine, 53 ALR2d 
183. 



Liability of employer for negligent opera- 
tion of motor vehicle by automobile sales- 
man, 53 ALR2d 631. 

Right to join master and servant as defen- 
dants in tort action based on respondeat 
superior, 59 ALR2d 1066. 

Independent contractor's or subcontrac- 
tor's liability for injury or death of third 
person occurring during excavation work 
not in street or highway, 62 ALR2d 1052. 

Liability of abutting owner or occupant 
for condition of sidewalk, 88 ALR2d 331. 

Right of contractor with federal, state, or 
local public body to latter's immunity from 
tort liability, 9 ALR3d 382. 

Master's liability for injury to or death of 
person, or damage to property, resulting 
from fire allegedly caused by servant's smok- 
ing, 20 ALR3d 893. 

Liability of builder-vendor or other ven- 
dor of new dwelling for loss, injury, or 
damage occasioned by defective condition 
thereof, 25 ALR3d 383. 

Liability of one contracting for private 
police security service for acts of personnel 
supplied, 38 ALR3d 1332. 

Liability to one injured in course of con- 
struction, based upon architect's alleged fail- 
ure to carry out supervisory responsibilities, 
59 ALR3d 869. 

Liability of builder or subcontractor for 
insufficiency of building resulting from la- 
tent defects in materials used, 61 ALR3d 792. 

Liability of subcontractor upon bond or 
other agreement indemnifying general con- 
tractor against liability for damage to person 
or property, 68 ALR3d 7. 

When is employer chargeable with negli- 
gence in hiring careless, reckless, or incom- 
petent independent contractor, 78 ALR3d 
910. 

Storekeeper's liability for personal injury 
to customer caused by independent contrac- 
tor's negligence in performing alterations or 
repair work, 96 ALR3d 1213. 

Tort liability for window washer's injury or 
death, 69 ALR4th 207. 

Modern status of rule imputing motor 
vehicle driver's negligence to passenger on 
joint venture theory, 3 ALR5th 1. 

The government-contractor defense to 
state products-liability cases, 53 ALR5th 535. 



244 



51-2-6 IMPUTABLE NEGLIGENCE 51-2-7 

51-2-6. Liability of owner or keeper of dog for damage done to livestock 
while off his or her premises. 

If any dog, while not on the premises of its owner or the person having 
charge of it, kills or injures any livestock, the owner or person having charge 
of the dog shall be liable for damages sustained by the killing or maiming 
of the livestock and for the full costs of action. (Ga. L. 1865-66, p. 76, § 1; 
Code 1868, § 2914; Code 1873, § 2965; Code 1882, § 2965; Civil Code 
1895, § 3822; Civil Code 1910, § 4418; Code 1933, § 105-111.) 

Cross references. — Liability of owner of 
dog which kills or injures livestock or poul- 
try, § 4-8-4. 

JUDICIAL DECISIONS 

Under this section, owner is liable for St. R. 404, 10 L.RA. (n.s.) 1136 (1907). 

certain acts of his dog, thus recognizing that Cited in Clinkscales v. Hammons, 159 Ga. 

the dog is property. Graham v. Smith, 100 App. 114, 282 S.E.2d 738 (1981); Mintz v. 

Ga. 434, 28 S.E. 225, 62 Am. St. R. 323, 40 Frazier, 160 Ga. App. 668, 288 S.E.2d 24 

L.R.A. 503 (1897); Columbus R.R. v. ngsi) 
Woolfolk, 128 Ga. 631, 58 S.E. 152, 119 Am. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 4 Am. Jur. 2d, Animals, Contributory negligence, assumption of 

§§ 96, et seq., 107 et seq. risk, or intentional provocation as defense to 

C.J.S. — 3A C.J.S., Animals, § 194 et seq. action for injury by dog, 66 ALR2d 916. 

ALR. — Validity, construction, and effect Liability for injury inflicted by horse, dog, 

of statute eliminating scienter as condition or other domestic animal exhibited at show, 

of liability for injury by dog or other animal, 80 ALR2d 886 

1 ALR 1113; 142 ALR 436. who " harbors » or " k » d under 

Character and extent of claims for which anima] UaMity statute 64 ALR4th 963 

ALrTmT ^ aUaCheS ' Intentional provocadon, contributory or 

r\ ' ' % c j comparative negligence, or assumption of 

Owner or keeper of trespassing dog as . , r . c ° ° • c . , „ 

u . . . , r ir»rr att> ns k as defense to action for injury by dog, 1 1 

subject to injunction or damages, 107 ALR ait??; v. 1 97 

1323. 



ALR5th 127. 



51-2-7. Liability of owner or keeper of vicious or dangerous animal for 
injuries caused by animal. 

A person who owns or keeps a vicious or dangerous animal of any kind 
and who, by careless management or by allowing the animal to go at liberty, 
causes injury to another person who does not provoke the injury by his own 
act may be liable in damages to the person so injured. In proving vicious 
propensity, it shall be sufficient to show that the animal was required to be 
at heel or on a leash by an ordinance of a city, county, or consolidated 
government, and the said animal was at the time of the occurrence not at 
heel or on a leash. The foregoing sentence shall not apply to domesticated 

245 



51-2-7 



TORTS 



51-2-7 



fowl including roosters with spurs. The foregoing sentence shall not apply 
to domesticated livestock. (Orig. Code 1863, § 2907; Code 1868, § 2913; 
Code 1873, § 2964; Code 1882, § 2964; Civil Code 1895, § 3821; Civil Code 
1910, § 4417; Code 1933, § 105-110; Ga. L. 1985, p. 1033, § 1.) 



History of section. — The language of this 
section is derived in part from the decision 
in Conway v. Grant, 88 Ga. 40, 13 S.E. 803 
(1891). 



Cross references. — Care, confinement, 
etc., of wild animals, Ch. 5, T. 27. 



Analysis 

General Consideration 

Knowledge 

Violation of Ordinances 

Domesticated Livestock 

Procedure 



JUDICIAL DECISIONS 



General Consideration 

This section is but a restatement of com- 
mon law. Rodriguez v. Newby, 131 Ga. App. 
651, 206 S.E.2d 585 (1974). 

The 1985 amendment of this section, sub- 
stituting "may" for "shall" in the first sen- 
tence, brought the amount of statutory lia- 
bility more in line with the liability imposed 
by the common law, since it did not purport 
to change the "first bite" rule, but rather 
supported the limited protection of the rule 
for pet owners by removing an inflexible 
strict liability standard. Hamilton v. Walker, 
235 Ga. App. 635, 510 S.E.2d 120 (1998). 

Section is not an exclusive basis for recov- 
ery when injury is caused by domestic ani- 
mal. Callaway v. Miller, 1 18 Ga. App. 309, 163 
S.E.2d336 (1968). 

Cause of action for attack by animal. — 
The owner of a vicious or dangerous animal, 
who allows the same to go at liberty, is liable 
to one who sustains injury as a result of the 
vicious or dangerous tendency of the animal 
only in the event that the owner knows of its 
vicious or dangerous character. Flowers v. 
Flowers, 118 Ga. App. 85, 162 S.E.2d 818 
(1968); Sutton v. Sutton, 145 Ga. App. 22, 
243S.E.2d310 (1978). 

Under this section, which is but a restate- 
ment of the common law, to support an 
action for damages for injuries sustained by 
being bitten by a dog, it is necessary to show 
that the dog was vicious, and that the owner 
had knowledge of this fact. Hays v. Anchors, 



71 Ga. App. 280, 30 S.E.2d 646 (1944); 
McCree v. Burks, 129 Ga. App. 678, 200 
S.E.2d491 (1973). 

An owner of a domestic animal who allows 
it to go at liberty is liable under this section 
to one who sustains injury as a result of the 
vicious or dangerous tendency of the animal 
only in the event the owner knows of its 
vicious or dangerous character. Starling v. 
Davis, 121 Ga. App. 428, 174 S.E.2d 214 
(1970). 

In order for a party to recover, it must 
appear that the animal had a propensity to 
do the act which caused the injury and that 
the defendant knew of it. McCree v. Burks, 
129 Ga. App. 678, 200 S.E.2d 491 (1973); 
Pearce v. Shanks, 153 Ga. App. 693, 266 
S.E.2d353 (1980). 

Cat and dog bite cases treated same. — 
There is no authority for the assertion that 
cat bite cases should be treated differently 
than dog bite cases. Fellers v. Carson, 182 
Ga. App. 658, 356 S.E.2d 658, cert, denied, 
182 Ga. App. 910, 356 S.E.2d 658 (1987). 

Cited in Phillips v. Cleveland, 31 Ga. App. 
206, 120 S.E. 639 (1923); Sinclair v. 
Friedlander, 197 Ga. 797, 30 S.E.2d 398 
(1944); Rutherford v. Underwood, 84 Ga. 
App. 624, 66 S.E.2d 768 (1951); Thomas v. 
Richardson, 129 Ga. App. 834, 201 S.E.2d 
653 (1973); Gordon v. Dawson, 146 Ga. App. 
784, 247 S.E.2d 596 (1978); Rines v. Harris, 
18 Bankr. 666 (Bankr. M.D. Ga. 1982); Smith 
v. Culver, 172 Ga. App. 183, 322 S.E.2d 294 
(1984); McBride v. Wasik, 179 Ga. App. 244, 



246 



51-2-7 



IMPUTABLE NEGLIGENCE 



51-2-7 



345 S.E.2d 921 (1986); Goodman v. Kahn, 
182 Ga. App. 724, 356 S.E.2d 757 (1987); 
Gilbert v. Hudspeth, 182 Ga. App. 898, 357 
S.E.2d 601 (1987); Pickard v. Cook, 223 Ga. 
App. 595, 478 S.E.2d 432 (1996). 

Knowledge 

Dog's dangerous character and owner's 
knowledge thereof. — Under this section 
the dog's dangerous character is at issue 
totally apart from the issue of the owner's 
knowledge of his dangerous character, there- 
fore, while the expert's report concluding 
that the dog was dangerous or potentially 
dangerous could not be relevant to the issue 
of knowledge because it was issued after the 
attack on the plaintiff, the fact that the dog 
was declared dangerous or potentially dan- 
gerous three weeks after the attack were 
relevant to whether the dog had dangerous 
propensities at the time of the attack. Tor- 
rance v. Brennan, 209 Ga. App. 65, 432 
S.E.2d658 (1993). 

Lack of knowledge of vicious and danger- 
ous character. — If owner does not know of 
vicious and dangerous character of his ani- 
mal, he will not be liable for injury which is 
not usual and natural consequence to be 
anticipated from allowing an ordinary ani- 
mal of that kind to go at large. Flowers v. 
Flowers, 118 Ga. App. 85, 162 S.E.2d 818 
(1968). 

Unforeseen and unforeseeable acts of 
dog. — Owner of dog may not be found 
liable for unforeseen and unforeseeable act 
of dog simply because dog was not under 
owner's direct control at the time the act 
took place. Fitzpatrick v. Henley, 154 Ga. 
App. 555, 269 S.E.2d 60 (1980). 

Proof of scienter required. — Under this 
section, it is still necessary, as at common law, 
to show not only that the animal is vicious or 
dangerous, but also that the owner or keeper 
knows of this fact. Harvey v. Buchanan, 121 
Ga. 384, 49 S.E. 281 (1904). 

Scienter is a necessary and a material fact 
which must be shown before there can be 
any finding of liability under this section. 
Chandler v. Gately, 119 Ga. App. 513, 167 
S.E.2d 697 (1969); McCree v. Burks, 129 Ga. 
App. 678, 200 S.E.2d 491 (1973); Banks v. 
Adair, 148 Ga. App. 254, 251 S.E.2d 88 
(1978). 

Proof of scienter is essential to a suit 



under this section. Johnson v. Hurt, 120 Ga. 
App. 761, 172 S.E.2d 201 (1969). 

Proof that the owner of a dog either knew 
or should have known of the dog's propen- 
sity to do the particular act which caused 
injury to the complaining party is indispens- 
able to recovery against the owner. 
Fitzpatrick v. Henley, 154 Ga. App. 555, 269 
S.E.2d 60 (1980); Stanger v. Cato, 182 Ga. 
App. 498, 356 S.E.2d 97 (1987). 

The size of a dog, its breed, and the fact 
that its owner keeps it restrained, does not 
establish any inference that the owner knows 
the dog to be dangerous. Freeman v. Farr, 
184 Ga. App. 830, 363 S.E.2d 48 (1987). 

Scienter requirement is not satisfied by 
dog owner's use of a restraining chain, or 
posting of "beware of dog" sign. Banks v. 
Adair, 148 Ga. App. 254, 251 S.E.2d 88 
(1978). 

Chain restraint may not be sufficient. — 
The simple fact that a dog is restrained on a 
chain may not be sufficient to establish the 
owner is free from liability for "careless 
management" under this section. Freeman 
v. Farr, 184 Ga. App. 830, 363 S.E.2d 48 
(1987). 

Owner is not responsible for acts of dog if 
there is lack of scienter. Banks v. Adair, 148 
Ga. App. 254, 251 S.E.2d 88 (1978). 

Where there is a lack of scienter even the 
breach of a leash law is not sufficient to hold 
the owner responsible for the acts of the 
dog. Turner v. Irvin, 146 Ga. App. 218, 246 
S.E.2d 127 (1978); Fitzpatrick v. Henley, 154 
Ga. App. 555, 269 S.E.2d 60 (1980). 

Knowledge of propensity to particular 
harm required. — It is not enough for 
liability under this section that the possessor 
of the animal know of a propensity to do 
harm in one or more specific ways; it is 
necessary that he have reason to know of its 
propensity to do harm of the type which it 
inflicts, Carter v. Ide, 125 Ga. App. 557, 188 
S.E.2d 275 (1972); Penick v. Grimsley, 130 
Ga. App. 722, 204 S.E.2d 510 (1974); Banks 
v. Adair, 148 Ga. App. 254, 251 S.E.2d 88 
(1978); Rowlette v. Paul, 219 Ga. App. 597, 
466 S.E.2d 37 (1995); Clark v. Joiner, 242 Ga. 
App. 421, 530 S.E.2d 45 (2000). 

Knowledge may be actual or constructive. 
— To support a recovery a plaintiff must 
show either actual or constructive knowl- 
edge by the defendant of the animal's dan- 
ger to others. Flowers v. Flowers, 118 Ga. 



247 



51-2-7 



TORTS 



51-2-7 



Knowledge (Cont'd) 

App. 85, 162 S.E.2d 818 (1968); Starling v. 
Davis, 121 Ga. App. 428, 174 S.E.2d 214 
(1970). 

Knowledge presumed in certain cases. — 
While this section does not set out how 
knowledge of the vicious nature of the ani- 
mal may be acquired, under the common 
law this knowledge is presumed to exist 
when the animal involved belongs to a cer- 
tain class of animals ferae naturae, such as 
lions, tigers, bears, wolves, baboons, apes, 
and monkeys, etc. Candler v. Smith, 50 Ga. 
App. 667, 179 S.E. 395 (1935). 

When a person is injured by an attack of 
an animal ferae naturae, the negligence of 
the owner or keeper thereof is presumed, 
because of the dangerous and ferocious pro- 
pensities of a wild beast, such as a lion, tiger, 
leopard, bear, ape, baboon, and such wild 
beasts, and the law recognizes that safety lies 
only in keeping such animals perfectly se- 
cure. Candler v. Smith, 50 Ga. App. 667, 179 
S.E. 395 (1935). 

A propensity on the part of a dog to bite 
people is not one of the instincts common to 
the species of which every owner must be 
presumed to have notice. Starling v. Davis, 
121 Ga. App. 428, 174 S.E.2d 214 (1970). 

What constitutes knowledge of animal's 
dangerous nature. — In order to constitute 
notice to an owner or keeper of an animal's 
vicious or dangerous nature, there should be 
an incident or incidents which would put a 
prudent man on notice to anticipate the 
event which occurred. A single incident may 
not adequately place a person on notice. 
The test should be whether the one incident 
was of such nature as to cause a reasonably 
prudent person to believe that the animal 
was sufficiently dangerous as to be likely to 
cause an injury at a later time. Sutton v. 
Sutton, 145 Ga. App. 22, 243 S.E.2d 310 
(1978). 

If a dog has "friendly" intentions but has 
habits which because of its size or other 
characteristics make it dangerous, then it 
seems that such behavior should be con- 
trolled. However, it is necessary that the 
owner, as previously pointed out, have 
knowledge of the pattern of the animal's 
dangerous behavior before he can be held 
for failure to control the animal. Flowers v. 
Flowers, 118 Ga. App. 85, 162 S.E.2d 818 
(1968). 



Sufficient evidence of dog's vicious pro- 
pensity. — By presenting evidence that de- 
fendant's animal was required to be on a 
leash by an ordinance of the applicable 
governmental body and that the animal was 
not on a leash at the time of the occurrence, 
plaintiff presented sufficient evidence to 
prove the vicious propensity of defendant's 
dog under this Code section. The trial court 
erred by granting summary judgment in 
defendant's favor based upon uncontro- 
verted evidence that defendant had no 
knowledge of his dog's vicious propensity. 
Fields v. Thompson, 190 Ga. App. 177, 378 
S.E.2d 390 (1989). 

Defendant pet-owner's statement to an- 
other, about three months before defen- 
dant's dog bit plaintiff, asking that person 
"to do whatever was necessary ... to keep 
the dogs from attacking. . ." raises genuine 
issues of material fact as to defendant's prior 
knowledge of the dogs' tendency to attack 
humans. Supan v. Griffin, 238 Ga. App. 404, 
519S.E.2d22 (1999). 

Knowledge or notice that dog will behave 
ferociously toward other animals is not nec- 
essarily notice that it will attack human be- 
ings. Carter v. Ide, 125 Ga. App. 557, 188 
S.E.2d 275 (1972); Banks v. Adair, 148 Ga. 
App. 254, 251 S.E.2d 88 (1978). 

Knowledge of attacks on other animals, 
combined with the confinement by defen- 
dant of his dog, is not sufficient to show 
defendant's knowledge of the dog's vicious 
tendencies and therefore to create liability 
under this section. Carter v. Ide, 125 Ga. 
App. 557, 188 S.E.2d 275 (1972). 

Dog's menacing behavior alone is suffi- 
cient to apprise its owner of animal's vicious 
propensities. Banks v. Adair, 148 Ga. App. 
254,251 S.E.2d88 (1978). 

Menacing behavior does not establish vi- 
cious propensity. — A dog's barking and 
growling amount, at most, to menacing be- 
havior, and menacing behavior does not 
establish vicious propensity under this sec- 
tion. Durham v. Mooney, 234 Ga. App. 772, 
507S.E.2d877 (1998). 

Knowledge of frolicsome affection di- 
rected solely to owners. — An owner's 
knowledge of a dog's frolicsome affection 
which is directed solely towards the owners is 
not such knowledge of a pattern of danger- 
ous behavior as to put a reasonably prudent 
person on notice that the animal may cause 



248 



51-2-7 



IMPUTABLE NEGLIGENCE 



51-2-7 



injury by displaying such behavior towards 
another at a later date. Marshall v. Person, 
176 Ga. App. 542, 336 S.E.2d 380 (1985). 

Fact that dog owner invited or allowed 
neighbor to pet his dog did not make him 
liable for the neighbor's subsequent dog bite 
injuries, where the owner had no prior 
knowledge, either actual or constructive, 
that the dog would bite the neighbor. 
Durham v. Mooney, 234 Ga. App. 772, 507 
S.E.2d877 (1998). 

Adequacy of owner's management and 
control. — A new trial was authorized where 
material fact issues existed as to the ade- 
quacy of an owner's management and con- 
trol of her dog. Evans-Watson v. Reese,